In Re Blodgett

510 N.W.2d 910, 1994 Minn. LEXIS 4, 1994 WL 7498

• Court: Supreme Court of Minnesota
• Decided: January 14, 1994
• Docket: C9-92-844
• Status: Published

Opinions

SIMONETT, Justice.

Petitioner Phillip Jay Blodgett challenges the constitutionality of the Minnesota Psychopathic Personality Commitment Act, Minn.Stat. § 526.09-10 (1992), under which he has been committed to the Minnesota Security Hospital as a psychopathic personality. We conclude, as did the lower courts, that the Act is constitutional, and affirm.

Blodgett, now 28, has a history of sexual misconduct and violence beginning when he was 16 years old. In January 1982, Blodgett was adjudicated a delinquent in Pierce County, Wisconsin, for having sexual contact with his brother. Seven months later, Blodgett was again found delinquent after being charged for misdemeanor battery of a social worker. In May of 1985, the Washington County District Court found Blodgett guilty of a misdemeanor charge of violating a domestic abuse restraining order.

On September 18, 1985, three hours after his release from the Washington County Jail where he served time for convictions for burglary and obstructing the legal process, Blodgett broke into the home of the parents of his ex-girlfriend, entered the room where his ex-girlfriend was sleeping, and sexually assaulted her. For this conduct Blodgett pled guilty, on January 16, 1986, and was sent to prison on a charge of first degree burglary for entering a dwelling with the intent to commit criminal sexual conduct.

On May 9, 1987, while enrolled in the pre-release program at Lino Lakes (under which an inmate leaves the prison during the day but must return at night), Blodgett sexually assaulted a woman in the parking lot of a supermarket while attempting to steal her car. Blodgett grabbed the woman, pushed her into the front seat, shoved his hand in her mouth, hit her on the side of the head, put his hand between her legs and squeezed and rubbed her genital area. When the woman resisted and screamed for help, Blod-gett asked her, “Do you want to die?” Five weeks later, June 15, 1987, while on supervised release to a half-way house and enrolled in a treatment program in St. Paul, Blodgett raped a 16-year-old girl both vaginally and anally. As a result of these incidents, Blodgett pled guilty to two counts of criminal sexual conduct in the second degree and was returned to prison.

Shortly before Blodgett’s scheduled release date in 1991, Dr. Richard Friberg evaluated him pursuant to the Department of Corrections’ new risk assessment and release procedures.¹ By letter dated September 19, 1991, Dr. Friberg informed the Washington County Attorney that, in his view, Blodgett met the criteria for commitment under the psychopathic personality statute.

A petition for commitment was promptly-filed by the Washington County Attorney, and an initial hearing was held on October 10 and 11, 1991. Evidence was received that Blodgett had an abused childhood in a dysfunctional family; that he had elevated MMPI scores and an addiction to both drugs and alcohol; and that although offered a “litany” of treatment programs, he had refused them all. The five psychologists who testified at the hearing agreed that Blodgett had an antisocial personality disorder, that he was chemically dependent, and that he was dangerous. Four of the five experts stated they felt Blodgett met the statutory definition of a psychopathic personality. When two of these four were questioned further about their understanding of the term “psychopathic personality,” one, Dr. Richard Friberg, explained that he relied solely on Minn.Stat. § 526.09 for his definition. The other, Dr. James Jacobson, stated that he had read the statute and had a copy of the relevant case law. Dr. John Austin, who opposed Blodgett’s commitment, stated he relied on “the definitions [he] was aware of in [the] Minnesota statute and at least the Minnesota Supreme Court’s interpretation of that [statute] in [the] Pearson case.” The court found by clear and convincing evidence that Blodgett is a psychopathic personality. Blodgett was committed to the Minnesota Security Hospital (MSH) in St. Peter and the hospital was ordered to file an evaluation report within 60 days. Sections 526.10, subd. 1. and 253B.18, subd. 2 (1992).

The MSH staff filed a report with the court, diagnosing Blodgett as suffering from polysubstance abuse and an antisocial personality disorder, but opposing his commitment as a psychopathic personality. A final court hearing was commenced on January 6, 1992, at which time Blodgett moved to dismiss the proceedings on the grounds “that Minnesota Statute Section 526.09 is unconstitutional.” At the hearing, Dr. Jacobson, who had performed the second court-ordered examination, diagnosed Blodgett as having an antisocial disorder, a substance abuse disorder, and a psychopathic personality, and said that Blodgett met the criteria of Minn.Stat. § 526.09. Dr. Michael Farnsworth, MSH senior staff psychiatrist, opposed commitment, contending that any treatment Blod-gett could receive at the hospital would be “sham” or “placebo” treatment.

Finally, on April 2, 1992, the trial court issued its decision finding that Blodgett continued to meet the criteria for commitment as a psychopathic personality and that there was no reasonable, less restrictive alternative to commitment. After further determining that the statute was constitutional, the trial court ordered Blodgett committed to the security hospital for an indeterminate period of time.

On appeal, the court of appeals ruled that the trial court’s finding that Blodgett was a psychopathic personality was not clearly erroneous and that Blodgett’s commitment as a psychopathic personality was not unconstitutional. In re Blodgett, 490 N.W.2d 688 (Minn.App.1992). Blodgett then petitioned this court for further review, raising, however, only the constitutional challenge. In other words, Blodgett does not challenge here the findings that he has an uncontrollable sexual impulse dangerous to others. We granted review.

Blodgett’s claim of unconstitutionality has two parts: (1) that § 526.10 violates his right to substantive due process; and (2) that the statute violates equal protection under the Minnesota and United States Constitutions.²

I.

Minnesota, like other states, has wrestled long with the legitimate public concern over the danger posed by predatory sex offenders and the question of how to deal with that concern.³ In 1989, the Minnesota Legislature passed a law, now codified as Minn.Stat. § 526.10, providing for the civil commitment of any person found to be a psychopathic personality. The term “psychopathic personality⁵’ is defined as

the existence in any person of such conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of personal acts, or a combination of any such conditions, as to render such person irresponsible for personal conduct with respect to sexual matters and thereby dangerous to other persons.

Minn.Stat. § 526.09. Originally, the laws relating to insane persons, rather than the laws relating to the dangerous insane, were made applicable to persons with a psychopathic personality. Minn.Stat. § 526.10 (1941). In 1969, § 526.10 was amended to make “the provisions of chapter 253A, pertaining to persons mentally ill and dangerous to the public,” applicable to psychopathic personalities. Minn.Stat. § 526.10 (1969).⁴

Soon after its enactment, the psychopathic personality statute was challenged on the grounds that it was unconstitutionally vague. State ex rel. Pearson v. Probate Court of Ramsey County, 205 Minn. 545, 287 N.W. 297 (1939), affd, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744 (1940). In responding to the vagueness challenge, this court in Pearson recognized that “[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. Such a definition would * * * make the act impracticable of enforcement, and perhaps, unconstitutional in its application.” Consequently, the court employed principles of statutory interpretation to narrow the reach of the statute to 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.

205 Minn, at 555, 287 N.W. at 302. Our court determined that, with these additional criteria, the act was not so indefinite or uncertain as to make it void for vagueness under the Fourteenth Amendment of the United States Constitution. The case was then appealed to the United States Supreme Court.

In a unanimous opinion authored by Chief Justice Charles Evans Hughes, the United States Supreme Court affirmed, holding the statute, as construed, was not so vague and indefinite as to be invalid. Minnesota ex rel. Pearson v. Probate Court of Ramsey County, Minn., 309 U.S. 270, 274, 60 S.Ct. 523, 526, 84 L.Ed. 744 (1940), aff'g 205 Minn. 545, 287 N.W. 297 (1939). In the Court’s view, “[t]hese underlying conditions, calling for evidence of past conduct pointing to probable consequences are as susceptible of proof as many of the criteria constantly applied in prosecutions for crime.” Id. The Court also rejected Pearson’s claim that the statute violated the Equal Protection Clause of the Fourteenth Amendment. Using a rational basis test, the Court stated that “the legislature is free to recognize degrees of harm, and it may confine its restrictions to those classes of cases where the need is deemed to be clearest.” Id. 309 U.S. at 275, 60 S.Ct. at 526. Finally, the Court found Pearson’s procedural due process objections premature, but assumed “that the Minnesota courts will protect appellant in every constitutional right he possesses.” Id. at 277, 60 . Recently, the constitutionality of our psychopathic personality statute was again upheld by the Eighth Circuit in Bailey v. Gardebring, 940 F.2d 1150 (8th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1516, 117 L.Ed.2d 652 (1992).

In this case, Blodgett argues that Pearson should not be controlling because in recent years the United States Supreme Court has decided a number of cases, especially Foucha v. Louisiana, — U.S. -, 112 S.Ct. 1780, 118 L.Ed.2d 487 (1992), which have restricted a state’s power to confine individuals in a noncriminal setting.⁵ To live one’s life free of physical restraint by the state is a fundamental right; curtailment of a person’s liberty is entitled to substantive due process protection. See, e.g., Foucha, — U.S. at -, 112 S.Ct. at 1785; Jones v. United States, 463 U.S. 354, 361, 103 S.Ct. 3043, 3048, 77 L.Ed.2d 694 (1983). The state must show a legitimate and compelling interest to justify any deprivation of a person’s physical freedom. E.g., United States v. Salerno, 481 U.S. 739, 748, 107 S.Ct. 2095, 2102, 95 L.Ed.2d 697 (1987).

Here the compelling government interest is the protection of members of the public from persons who have an uncontrollable impulse to sexually assault. In this case it has been clearly and convincingly established that Blodgett is dangerous, and that there is a substantial likelihood that he will sexually assault again, as he has in the past. Blod-gett contends, however, that having served his allotted time in prison, he is entitled to his freedom.

The heart of Blodgett’s argument is that although he may be socially maladjusted, he is not in any way mentally ill. And if he is not ill, he may not be confined by the state, unless and until convicted of another crime. Blodgett points to Foucha, which identified three categories of confinement in which a state, under its police power, may constitutionally deprive an individual of his or her liberty: (a) imprisonment of convicted criminals for purpose of deterrence and retribution; (b) confinement for persons mentally ill and dangerous; and (c) in “certain narrow circumstances, persons who pose a danger to others or to the community may be subject to limited confinement,” such as pretrial detention of dangerous criminal defendants. Id. — U.S. at -, 112 S.Ct. at 1785-86. Blodgett says he does not fit within any of these three categories.

Blodgett’s argument, really, is that Foucha has overruled Pearson, even though the United States Supreme Court has not said so. We believe, however, that Pearson may be considered either a sub-set of Foucha’s second category (mentally ill and dangerous), or an additional category.⁶

The argument against the constitutionality of civil commitment for a psychopathic personality is that the condition is not a mental illness, at least not one medically recognized, or at least not yet. But while the term “psychopathic personality” is considered outmoded today, the reality it describes is not; this reality, even if it is not currently classified as a mental illness, does not appear to be a mere social maladjustment.

Mental illness is simply that, an illness, and should be treated no differently than other illnesses and with due respect for personal liberties. When, however, a person is both mentally ill “and dangerous to the public,” our legislature has provided for commitment to the state security hospital. Minn. Stat. § 253B.18 (1992). In like measure, and with like concern, our legislature has provided for commitment of the “psychopathic personality” who, because of an uncontrollable sexual impulse, is dangerous to the public.

The psychopathic personality statute identifies a volitional dysfunction which grossly impairs judgment and behavior with respect to the sex drive. Compare Minn.Stat. § 253B.02, subd. 13 (1992) (defining mental illness). The psychopathic personality is sometimes equated with the medically recognized “anti-social personality disorder”; it is, however, limited to sexual assaultive behavior and excludes mere sexual promiscuity.⁷ It also excludes other forms of social delinquency. Whatever the explanation or label, the “psychopathic personality’’ is an identifiable and doeumentable violent sexually deviant condition or disorder.⁸

In applying the Pearson test, the court considers the nature and frequency of the sexual assaults, the degree of violence involved, the relationship (or lack thereof) between the offender and the victims, the offender’s attitude and mood, the offender’s medical and family history, the results of psychological and psychiatric testing and evaluation, and such other factors that bear on the predatory sex impulse and the lack of power to control it. Proof of the requisite condition must be by clear and convincing evidence.

As the dissent points out, there apparently have been instances of persons committed as psychopathic personalities who do not fit the Pearson definition. The fact that the statute has been misapplied on occasion is not a valid criticism of the statute itself. The remedy for misapplication is not to declare the statute unconstitutional but to appeal erroneous decisions and get them reversed.⁹ More pertinent to the facial challenge to the statute are the cases where the statute has been properly applied.¹⁰

The problem is not what medical label best fits the statutory criteria, but whether these criteria may, constitutionally, warrant civil commitment. Fifty-three years ago the answer was yes, but it is now suggested that the passage of years has outmoded that decision. Yet the “sexual predator” — today’s term for yesterday’s “psychopathic personality” — seems, if anything, on the increase, which may be related to the increase in dysfunctional families and substance abuse.¹¹

It is next argued that a psychopathic personality condition is untreatable, and, therefore, confinement is equivalent to life-long preventive detention. But it is not clear that treatment for the psychopathic personality never works.¹² It also seems somewhat incongruous that a sexual offender should be able to prove he is untreatable by refusing treatment. Cf. Matter of Wolf, 486 N.W.2d 421, 424 (Minn.1992) (A confirmed alcoholic refusing all treatment may be involuntarily committed; “[respondent may never agree to be treated, but ⅜ * * the state has the power to keep trying.”).

But even when treatment is problematic, and it often is, the state’s interest in the safety of others is no less legitimate and compelling. So long as civil commitment is programmed to provide treatment and periodic review, due process is provided. Minnesota’s commitment system provides for periodic review and reevaluation of the need for continued confinement. 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. The patient can also petition for a full discharge. Minn.Stat. §§ 526.10 and 253B.18, subds. 5, 6, 7 & 15 (1992). De novo judicial review of the commissioner’s decision is provided. Minn.Stat. § 253B.19 (1992). Further, committed persons have the right to an individualized written program plan; the right to periodic medical assessments; and the right to proper care and treatment, best adapted, according to contemporary professional standards, to rendering further confinement unnecessary. Minn.Stat. § 253B.03, subd. 7 (1992).

We do not read Foucha to prohibit Minnesota’s commitment program for psychopathic personalities. In Foucha the confinement was for insanity and, when the insanity was shown to be in remission, the United States Supreme Court said Foucha had to be released.¹³ Here, if there is a remission of Blodgett’s sexual disorder, if his deviant sexual assaultive conduct is brought under control, he, too, is entitled to be released.¹⁴ We conclude, therefore, that the psychopathic personality statute does not violate substantive due process.

II.

Nor do we think the psychopathic personality statute violates equal protection under either the federal or state constitution. Because the fundamental right of liberty is involved, we assume the United States Supreme Court would require a heightened degree of scrutiny for federal equal protection analysis. And we think no less is required under our state constitution. See State v. Russell, 477 N.W.2d 886, 889 (Minn.1991), and also at 895 (Simonett, J., concurring opinion); and Mitchell v. Steffen, 504 N.W.2d 198, 210 (Minn.1993) (Tomljanovich, J., dissenting opinion), pet. for cert. filed 62 U.S.L.W. 3850 (1993).

Blodgett’s equal protection argument is obscure, but he apparently claims it is a denial of equal protection to deny sexual predators their liberty when others who may be dangerous but not recognized medically as mentally ill retain their personal freedom. This, however, is simply a variation of Blod-gett’s substantive due process argument, and the argument ignores the fact that the sexual predator poses a danger that is unlike any other.¹⁵ Amicus argues that it is unequal treatment to commit the psychopathic personality but not other criminal recidivist types, such as potential murderers and arsonists. But again, Pearson delineates genuine and substantial distinctions which define a class that victimizes women and children in a particular manner. See Bailey v. Gardening, 940 F.2d 1150, 1153 (8th Cir.1991) (also rejecting the equal protection claim).

III.

In this ease the trial judge’s findings of fact follow the statutory language of Minn. Stat. § 526.09-.10. The findings should have referred to the restrictive construction given the statute in Pearson. It appears, however, that Pearson was repeatedly referred to during the court hearings and that the trial judge had Pearson in mind in making his decision. We agree with the court of appeals’ opinion which construes the trial court’s findings in view of the evidence to accord with Pearson, and, therefore, we see no need for a remand for further findings. We think, however, the legislature might well consider amending the statute to incorporate the Pearson construction.

Although this is not a proceeding where a committed person is seeking a discharge from commitment, we believe, in such a case, that the burden of proof should be on the state to show by clear and convincing evidence that commitment should continue. In such a proceeding the committed persons should have legal representation, just as at an initial commitment proceeding.

Most sexual offenders will be released upon completion of their prison terms. It is only the predator that is subject to Minn. Stat. § 526.10. If the state were to be denied the ability to hospitalize the predator, then, rather than let the offender out on the street, the state will counter by increasing the length of the prison sentence. Minnesota has already taken this step by enacting a patterned sex offender statute. In State v. Christie, 506 N.W.2d 293 (Minn.1993), this court upheld the constitutionality of this statute where sentences are increased solely because the sex offender is dangerous and likely to attack sexually again. Arguably, then, the question is not whether the sexual predator can be confined, but where. Should it be in prison or in a security hospital?

Or to put it another way: Is it better for a person with an uncontrollable sex drive to be given an enhanced prison sentence or to be committed civilly? The State of Washington, with a somewhat different program, has opted for the second alternative. See In re Young, 122 Wash.2d 1, 857 P.2d 989 (1993) (upholding constitutionality of sexually violent predator commitments under state’s Community Protection Act). For the legislature which must provide the necessary prison cells or hospital beds, there are no easy answers. Nor are there easy answers for society which, ultimately, must decide to what extent criminal blame is to be assigned to people who are what they are.

At issue is the safety of the public on the one hand and, on the other, the liberty interests of the individual who acts destructively for reasons not fully understood by our medical, biological and social sciences. In the final analysis, it is the moral credibility of the criminal justice system that is at stake.¹⁶

In the present imperfect state of scientific knowledge, where there are no definitive answers, it would seem a state legislature should be allowed, constitutionally, to choose either or both alternatives for dealing with the sexual predator. At the very least, we should follow Pearson until the United States Supreme Court says otherwise.

Affirmed.

WAHL, J., dissents and files opinion, in which KEITH, C.J., and TOMLJANOVICH, J., join.

1 . Frank W. Wood, Risk Assessment and Release Procedures for Violent Offenders/Sexual Psychopaths (1991). The introduction to the section entitled Institution Procedures for Identification, Monitoring and Release of Public Risk Monitoring Cases reads as follows:

These procedures are designed to create a uniform screening process and criteria to be used by institution program review teams for the identification of offenders already in or entering the corrections system whose behaviors prior to commitment or related to the offender’s committing offense or during incarceration indicate that the offender is a candidate for civil commitment as a psychopathic personality or may represent a risk to the public upon release.

2 . We also granted leave to the Minnesota Civil Liberties Union to file an amicus brief. Because our review is limited to the issues raised by appellant Blodgett, we do not consider the additional issues raised by amicus.

3 . Minnesota is one of 13 jurisdictions with a sexual psychopath statute: Colorado, Connecticut, Illinois, Massachusetts, Minnesota, Nebraska, New Jersey, Oregon, Tennessee, Utah, Virginia, Washington, and the District of Columbia. Gary Gleb, Comment, Washington’s Sexually Violent Predator Law: The Need to Bar Unreliable Psychiatric Predictions of Dangerousness from Civil Commitment Proceedings, 39 UCLA L.Rev. 213, 215 (1991).

In 1959, 26 states and the District of Columbia had sexual psychopath statutes but, except for the 13 jurisdictions above listed, have since repealed their statutes. See Alan H. Swanson, Comment, Sexual Psychopath Statutes; Summary and Analysis, 51 J.Crim.L. & Criminology 215, app. at 228-35 (1960-61).

4 . Chapter 253B, formerly chapter 253A, includes the discharge provisions, section 253B.18, subd. 15 (1992), whereby a person committed as a psychopathic personality remains confined until showing to the satisfaction of the commissioner and the special review board that the person "is capable of making an adjustment to open society, is no longer dangerous to the public, and is no longer in need of inpatient treatment and supervision.”

5 . In Foucha v. Louisiana, - U.S. -, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992), the United States Supreme Court held that a Louisiana civil commitment statute, which allowed a person acquitted by reason of insanity, who had an antisocial personality disorder but no longer a mental illness, to remain indefinitely committed to a mental hospital on the basis of dangerousness alone, violated substantive due process.

See also Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (commitment for mental illness); and Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972) (pretrial commitment of incompetent criminal defendant).

6 . It does not appear that the three categories mentioned in Foucha were meant to be exclusive. Minnesota, for example, provides for civil commitment without a finding of mental illness in three other situations, namely, Minn.Stat. § 253B.02, subd. 14 (1992) (mentally retarded), Minn.Stat. § 253B.02, subd. 2 (1992) (chemically dependent), and Minn.Stat. § 144.4172, subd. 8 (1992) (a health threat to others).

7 . See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 342-46 (3d ed. rev. 1987). The manual indicates that the antisocial personality disorder may at times be characterized by sexual promiscuity.

8 . "Sexual offenders have been found to present distorted and disturbed thought processes, as identified in previous research. For example, several studies have reported that men prone towards sexual violence and convicted rape offenders hold false beliefs, distorted perceptions, and irrational justifications concerning violence against women.” Margit Henderson & Seth Ka-lichman, Sexually Deviant Behavior and Schizo-typy: A Theoretical Perspective with Supportive Data, Psychiatric Quarterly, Vol. 61, No. 4 (Winter 1990) at p. 281. “[Tjhere are diagnostic implications for identifying schizotypic characteristics among sexual offenders.” Id. at 282. In our case here, the trial court found that Blod-gett had no insight into his misconduct and had no sense of guilt or remorse.

9 . See In re Rodriguez, 506 N.W.2d 660 (Minn. App. (1993), rev. denied (Minn.1993). There the court of appeals reversed a commitment as a psychopathic personality, holding, as a matter of law, the statute does not cover a nonviolent sexual exhibitionist.

10 . See, e.g., Enebak v. Noot, 353 N.W.2d 544 (Minn.1984). The petitioner was found to have an antisocial personality disorder and was civilly committed. He had sexually assaulted over 37 women in the 15 years prior to his commitment, leaving his last victim prior to commitment, a 16-year-old girl, paralyzed with fractured vertebrae. When transferred to an “open” hospital, he became sexually involved with a mentally retarded patient and on pass from the hospital sexually assaulted another young girl. See also Matter of Martenies, 350 N.W,2d 470 (Minn.App. 1984), rev. denied (Minn.1984) (sexual sadist with history of sexual assaults).

See also In the Matter of Dwight (NMN) Walton, 510 N.W.2d 203 (Miim.1994), the companion appeal to Blodgett, also decided today. On January 13, 1986, Walton raped a 13-year-old girl, threatening to shoot her if she made any noise. The next day he forced a 19-year-old woman, at knife point, to have intercourse three times over the course of an hour, during which he moved her to different locations. He was convicted, put in prison, and eventually released on August 15, 1989. Less than a year later, on July 21, 1990, Walton broke into an apartment in a complex where he lived, later admitting he intended to commit rape, but fled when the woman screamed. At a party two months later, he partially disrobed a young woman who had passed out on a couch.

11 .See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 301.70 (3d ed. rev. 1987) and the clinical criteria listed. See also the Final Report of the Minnesota Attorney General’s Task Force on the Prevention of Sexual Violence against Women (Feb. 1989) at 30.

12 . See, e.g., Barbara K. Schwartz, Ph.D., Effective Treatment Techniques for Sex Offenders, Psychiatric Annals, Vol. 22:6 (June 1992) at 319: "While popular opinion may continue to be 'nothing works,’ thousands of professionals are exploring 'what works.’" As the author points out, therapists are working with behavioral reconditioning, cognitive-behavioral techniques, family systems approaches, and the addictive model. See also Harry L. Kozol, Richard J. Boucher, & Ralph F. Garafalo, The Diagnosis and Treatment of Dangerousness, 18 Crime and Delinquency 371, 381 (1972).

13 . Foucha's criminal act was aggravated burglary and illegal discharge of a firearm. After Fou-cha regained his sanity, Louisiana sought to continue his confinement because he had been involved in several altercations while institutionalized, indicative of an antisocial personality, and the doctor said that he would not "feel comfortable” in certifying Foucha as nondangerous. Foucha, - U.S. at -, 112 S.Ct. at 1782-83. Foucha, of course, would not be com-mittable under our psychopathic personality statute.

14 .Charles Pearson, the appellant in State ex rel. Pearson v. Probate Court of Ramsey County, 205 Minn. 545, 287 N.W. 297 (1939), affd, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744 (1940), was, interestingly enough, released within the year after the United States Supreme Court affir-mance of his commitment. See Dr. William D. Erickson, The Psychopathic Personality Statute; Need for Change 10 (1991) (unpublished paper presented by the Commissioner of Human Services to the legislature in 1991, appellant's appendix at 38).

15 . Blodgett seems to argue also that the likelihood of a psychopathic personality’s conduct being dangerous is less predictable than for a mentally ill person. There is no merit to this argument. As Foucha notes, the opinions of mental health experts are sufficiently reliable to support commitment proceedings. Foucha, - U.S. at -n. 3, 112 S.Ct. at 1783 n. 3. See also State v. Christie, 506 N.W.2d 293 (Minn.1993).

16 . The concern with enhanced criminal punishment on the basis of dangerousness is that the punishment may tend to become divorced from moral blameworthiness, thus adversely affecting the criminal justice system's credibility, which largely rests on a sense of blameworthiness. See Paul H. Robinson, Foreword: The Criminal-Civil Distinction and Dangerous Blameless Offenders, 83 J.Crim.L. & Criminology, No. 4, 693 at 716 (1993). Professor Robinson argues "that it would be better to expand civil commitment to include seriously dangerous offenders who are excluded from criminal liability as blameless for any reason, than to divert the criminal justice system from its traditional requirement of moral blame.” Id.

5 . Commentators have noted that

"growing awareness that there is no specific group of individuals who can be labeled sexual psychopaths by acceptable medical standards and that there are no proven treatments for such offenders has lead such professional groups as the Group for the Advancement of Psychiatry, the President’s Commission on Mental Health, and most recently, the American Bar Association Committee on Criminal Justice Mental Health Standards to urge that these laws be repealed.”

Samuel J. Brakel, John Parry, and Barbara A. Weiner, The Mentally Disabled and the Law, (3rd Ed. 1985) 743.