Two Minnesota stories converged last week. In the first, a federal judge declared the Minnesota Sex Offender Program (MSOP) unconstitutional; the second was John Nienstedt’s resignation as archbishop of the MSP Catholic diocese. Together, they tell a story of sex (power), lies (deception and coverup), and leadership (bureaucracy and shirking of responsibility) with equally tragic tales and little to praise in terms of the political or religious leaders of the state of Minnesota and the Catholic Church.
Minnesota Sex Offender Program
As expected, U.S. District Court Judge Donovan Frank declared the MSOP unconstitutional. Minnesota state officials really knew MSOP was unconstitutional, but they just did not care. As Frank well put it, everyone has rights, including sex offenders, and the MSOP amounted to either a roach motel (“they check in and they don’t check out”) or simply a lock-them-up-and-throw-away-the-key approach to dealing with sex offenders.
The 76-page opinion crisply summarized the constitutional infirmities of MSOP. The program cannot use civil commitment to punish for past crimes since the offenders have already served their sentence. The program cannot use civil commitment to lock people up indefinitely to prevent them from committing future crimes because that is not what we do in a free society that values liberty. The only constitutional justification for civil commitment is to provide treatment to individuals who are mentally ill until such time that they are cured and deemed to be fit to freed.
However, the decision documents a horrendous pattern of non-treatment for detainees’ mental illness. No treatment, changed treatment, failed treatments. Detainees were not evaluated, had no options to placement into a less restrictive environment. None of the individuals ever committed into the MSOP had ever been released, and only a few ever received conditional release. Compared to similar programs in Wisconsin and New York, Minnesota simply decided to do nothing with these individuals except detain them for life.
The opinion documents a willful pattern of refusal to treat. It is a story that goes back to the very creation of the program in the 1990s, but especially damns both the Pawlenty and Dayton administrations. Repeatedly there were reports and warnings from state officials that the program has problems, but the governors and legislators refused to act, fearing political repercussions. It is hard to read this opinion and not see that there was an intentional refusal to act and treat. The state used the lie of mental illness to detain and then chose not to treat. Frank documents a dozen problems with MSOP, finding the program was facially unconstitutional and as applied. Finally, the opinion sets an Aug. 10, 2015, hearing, demanding that the governor and legislative leaders appear before him with a game plan for how to comply with this order. No surprise, Gov. Dayton’s first reaction was defiance, declaring that he thought MSOP was constitutional, suggesting appeal.
What is one to make of the opinion and reaction to it? Appeal is likely, but the chances of the state winning are practically nil. Finding it both unconstitutional facially and as applied makes it harder to win on appeal, especially when for each type of challenge Judge Frank found numerous problems. All it takes is for an appeals court to uphold one constitutional defect and MSOP is dead. The Supreme Court will not take the case – there is no matter of new law here, it is all about a factual case of abuse. In fact, the non-treatment was so bad and willful that it is likely that each of the individuals in MSOP can bring individual constitutional challenges, potentially seeking millions of real and punitive damages from the state. Add to that the costs to correct MSOP and treat, and the state is on the financial hook big time.
Dayton’s appeal of the decision is an effort to yet again kick the can down the road. No one wants to take personal responsibility for the problems with MSOP. Dayton could have taken the high road, acknowledged problems with MSOP, and said he would address them. He wants to put the issue beyond the 2016 election, perhaps even beyond his governorship. Yet the Aug. 10 hearing suggests that Judge Frank knows this. Look to see him hold the state in contempt of court with large fines if they do not act. Ultimately, the taxpayer will be paying for this willful choice not to act.
Sex abuse and coverup in the Catholic Church
Watergate taught us that oftentimes it’s not the crime that is the problem, it is the coverup. Persistent sex abuse by Catholic priests is horrible enough of a crime, but what makes it worse is the coverup. It’s clear that the higher-ups in the Catholic Church, especially in the MSP Archdiocese, knew about the abuse, did little to nothing to stop it, and instead simply covered it up. If they were a private corporation they would be out of business or in jail by now. Wall Street is littered with stories of CEOs and executives who covered up illegal behavior of their companies. I know of no private company that could have gotten away with what the Catholic Church did. They abused their moral authority and fiduciary responsibility to look out for the best interests of their congregations.
They did that in ways that are taken as textbook. Deny knowledge, stonewall investigations, blame the accusers. Make it hard for victims to file suits and delay long enough that statutes of limitations, death of priests, or memories of witnesses fade.
On June 5, the Ramsey County Attorney’s Office filed both a criminal complaint and a civil petition against the Archdiocese of Saint Paul and Minneapolis. With County Attorney John Choi’s approach the church as an institution is held responsible, but no one individually will be.
Lessons learned
So why do these two tragedies tell a story of sex (power), lies (deception and coverup), and leadership (bureaucracy and shirking of responsibility)? Ostensibly both the MSOP and priest sex abuse is about sex, but really at the end of the day both are about power. They are about the story of two bureaucracies using their power to control others. In one case sex offenders, in the other, sex- abuse victims. It is about how individuals can escape moral responsibility for their actions by hiding in a bureaucracy. They do that by lying, deception, covering up abuse, and simply by shirking leadership and responsibility. In my ethics training I often discuss the concept of administrative evil, seeking to explain why good people and organizations do bad things.
With the state of Minnesota and the MSP Catholic Church one see how bureaucracies can malfunction, perverted one small step at a time by leaders unwilling to make the right decisions. Bishops and elected officials can hide within their respective institutions, morally deaf to the way their choices are victimizing others and damaging the legitimacy of both church and state.
David Schultz is a Hamline University professor of political science and the author of “Election Law and Democratic Theory” (Ashgate, 2014) and “American Politics in the Age of Ignorance” (Macmillan, 2013). He blogs at Schultz’s Take, where a version of this piece first appeared.
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Moral responsibility
“It is about how individuals can escape moral responsibility for their actions by hiding in a bureaucracy.”
I think the good professor is just a bit off the point. For one thing, I don’t Catholics feel that they can escape moral responsibility by hiding wrongdoing. Legal responsibility maybe, but not moral responsibility. And more generally, I don’t think the reason people do bad things, is that it gives them the opportunity to conceal guilt, moral or otherwise.
There are problems here in both cases. I have my thoughts on what exactly they might be, but for now, let’s try to identify and define the problem. Why did the officials in each case act the way they did? And what can we do in response, first to remedy the damage that has been done, and secondly, what can we do, what changes can we implement, that would at least help to ensure that we don’t make these mistakes again?
Moral complications
The idea that Catholics must accept moral responsibility for certain actions is based on the incorrect assumption that moral choices are binary — either inherently good or evil. In fact, moral decisions are graduated, like temperature, not binary like computer codes. And they are complex, with more than one good-evil scale at work. This makes it possible to look at an action some would regard as immoral and decide that it is moral by a different criteria. So it is quite possible that a bishop might decide that preservation of a beneficial institution’s reputation is more moral than punishing priests, or that trying to treat a priest is more moral than removing him in disgrace. Similarly, a governor could conclude that protecting the general public to the maximum extent is more moral than releasing someone who presents even a remote danger to the general public. So the question is not whether or not an action is immoral, it is simply whether or not the person correctly calculated the relative value of different criteria, and correctly judged the ultimate cost/benefit of those decisions. In both of the cases discussed by Prof. Schultz, it seems to me that they were based on the wrong moral criteria. But the practical test in each decision is the ultimate damage to the Catholic church and the ultimate cost to Minnesota taxpayers.
Nearly All Correct
The only thing I would disagree with Schultz is his laughable assertion that “I know of no private company that could have gotten away with what the Catholic Church did.”
I’ll buy that if he can name even one individual from Wall Street that was charged with a crime in the wake of the financial collapse in 08-09. No individual or corporation was charged after that, as the Reagan Justice Department did in the S & L scandal earlier. Recently 5 of the largest banks in the world were caught breaking the law, “rigging the game” in the words of Elizabeth Warren, and they merely paid fines that were small relative to their total budgets and the gains their crimes brought them.
Scoundrels belong behind bars, whether they wear clerical collars or Armani suits with Gucci loafers.
My correction
Frank Phelan offers a terrific correction. My comment should have been more specific and stated: “I know of no private company that could have gotten away with what the Catholic Church did when it comes to allegations of sexual impropriety.” Few companies I know could have had employees sexually abuse customers or clients and then not face some serious legal repercussions for that. Yes, companies can and do financially screw the taxpayer and the public and seem to get away with it with impunity but the Catholic Church is not a private company and (pardon the pun) they were not financially screwing the taxpayers or the public but instead they were …. (you fill the obvious in).
It’s the Archdiocese of
Saint Paul and Minneapolis.
How can I trust your facts when you cannot name the Archdiocese correctly?
The crime of molesting a child is much worse than the cover up! The poor kid has to live with the horror of a trusted Priest breaking every moral code imaginable and raping them. Makes me sick to my stomach even writing it. The cover up shows total lack of understanding the magnitude of the crime, sickening in its own rite. Anybody involved in either should be publicly shamed,thrown out of the Priesthood and sent to prison.
As far as sex offenders go, when someone can prove they can cure them, I would consider letting them out. Until then lock em up and throw away the key.
Multiple Opportunites
It’s not just covering up one incident, it’s the fact that abusers were protected and moved around which allowed them access to more victims. One priest may only abuse a few children, but the hierarchy is indirectly responsible for the abuse of many more because they did not protect the children whose safety they were responsible for.
If you want to “lock them up and throw away the key”, the legislature can do that. You can tell your rep to raise the mandatory minimum prison term to 60 years. That would be constitutional.
The MSOP operates with an excess of caution with respect to future acts.
The Catholic church acted with a deficit of caution with respect to future acts.
Read this once from the perspective of the MSOP program and once from the viewpoint of the offending priest:
(quote)
Unless we believe that individuals who have sexually offended are evil rather than broken, and treatment is meant to be banishment in disguise, the MSOP must be a legitimate vehicle and opportunity for clients to return to their homes and families. Communities that have sent clients to the MSOP should prepare for them to return, creating support, not hindrances, for housing and employment. If rehabilitation is to be sincere and effective, we must both demand and facilitate recovery. If public wrath, sex-offender registries, residency restrictions and other civil regulations make it impossible for individuals to recover, they won’t. We should not use what “they” did to “us” to justify what “we” do to “them.” They come from us.
http://www.startribune.com/minnesota-sex-offender-program-public-safety-or-public-policy/307715691/
(end quote)
Holding individuals responsible
While I thought my essay was clear let me underscore a point. Yes, the Ramsey County Attorney is bringing criminal charges against the St Paul Minneapolis Archdiocese as an entity no one individually is being indicted. Because the Church as an organization is being held responsible that makes it possible for individuals to escape personal responsibility. The same it true with the state of Minnesota and MSOP. The government is responsible and therefore no one individually is or will assume responsibility. What bureaucracies do at their worst is insult individuals from personal responsibility for their or an entity’s responsibilities.
High Marks for David Schultz
Terrific Article. Of course it’s about power. To appease parents in the 80s and 90s, legislators put in place a horrific system that fails to protect kids while destroying young lives. Once aware of the flaws in their own system, legislators used their power not to transform or dismantle it but to strengthen and lengthen it. Anyone can get in; no one can get out, except of course kids of privilege. They aren’t the ones who are being swept up into sex offender registration. It’s low income kids, kids whose fathers don’t play golf with judges or attorneys, kids who are assigned public defenders who gleefully declare: “This is your lucky day. You have to sign on to registration, but I’ve found a way to keep you out of jail.” They’re the same kids we send to fight our wars—then fail to assist with finding jobs once and if they return home. That’s what power is about, taking care of one’s own—whether Catholic priests or privileged children—always at the expense of others.