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.
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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