Is the Minnesota Sex Offender Program unconstitutional? We’re about to find out

MinnPost photo by Briana Bierschbach
Monday marked the first day of the trial in Courtroom 7C.

The opening day of trial in the lawsuit against Minnesota’s program for treating its most dangerous sex offenders was a study in contrasts — how two very similar states can have such dramatically different results in treating offenders.

About 20 years ago, both Minnesota and Wisconsin established programs to treat sex offenders who seemed likely to recommit their crimes. But where Minnesota’s program has more than 700 (and growing) offenders confined in its facilities in Moose Lake and St. Peter, Wisconsin’s Sand Ridge facility is home to 362 committed offenders, Deborah McCulloch, head of the Wisconsin program, said in court Monday.

Wisconsin’s program has discharged 118 people in that time; Minnesota’s program has never unconditionally released someone back into society. Wisconsin has put 135 offenders on supervised release over the last two decades, but Minnesota has only given two people provisional release. Minnesota’s program is home to more than 50 men who have no adult records, meaning their only offenses were committed before they turned 18. Wisconsin has two, maybe three, individuals like that in its program, McCulloch said.

McCulloch’s testimony was the first used by attorneys arguing the Minnesota Sex Offender Program (MSOP) is unconstitutional because it offers the promise of treatment to offenders — most of whom have already completed their prison sentences — but rarely lets anyone out of the prison-like facilities once they’ve been committed. 

“Of course [the program] is hopeless, the door only swings one way. It’s easy to get in, it’s impossible to get out,” Dan Gustafson, the attorney for MSOP clients said in a packed St. Paul courtroom as offenders watched the trial streamed live 112 miles away in Moose Lake. “The simple fact is this program is punitive detention.”

The trial is the latest phase of a years-long court process and political battle to make changes to the controversial program. Over the last year, an expert panel started and ultimately halted work on a case-by-case review of all offenders in the program, and even recommended some offenders for immediate, unconditional release from MSOP.

But the class action lawsuit is the main event. U.S. District Court Judge Donovan Frank has already signaled his distaste for the current system, calling it “clearly broken” and “Draconian” in a ruling early last year. He put pressure on state lawmakers to address concerns regarding the low-rate of release from the program, but reforms are regularly tangled up in politics. After several weeks of trial, it’s possible that Frank could order the state to completely change the way it deals with its dangerous sex offender population.

Opening arguments paint vastly different pictures

On Monday, Gustafson laid out the arguments he will make and try to prove over the next few weeks, which will feature testimony from sex offenders, experts and some officials from the Department of Human Services, which runs the program.

Among the problems with the program, Gustafson said:

  • MSOP doesn’t require or seek out regular review of how offenders are progressing in treatment
  • The process to petition for discharge can be “cumbersome” and can take months or “even years”
  • MSOP doesn’t address the individualized needs of the vulnerable populations in the program, namely: juveniles, the elderly, those suffering from disabilities; and the one woman committed to the program
  • The program has suffered from “chronic under-staffing,” high turnover rates and “poor record keeping,” he said

Gustafson said there could be “dozens or perhaps hundreds” of offenders in the program that could be taken out of the razor-wired facilities and put in a less-restrictive alternative.

But Nathan Brennaman, the lead attorney arguing on behalf of the state, painted a dramatically different picture of Minnesota’s sex offender treatment program. First and foremost, he said, MSOP is designed to keep Minnesotans safe, and it does that constitutionally by treating offenders in secure facilities.

Sex offenders sent to the program spiked after the 2003 murder of Dru Sjodin, a college student who was murdered by an offender from Minnesota who was released from his prison sentence and not sent to MSOP. A 2013 state audit of the Wisconsin program found that between 1994 and 2010, the state discharged 67 offenders. Of those, 13 offenders committed new crimes within three years and five were convicted of sex crimes.

Brennaman also defended the treatment within the program, saying clients are given individualized attention from “caring professionals who are doing the best they can with this difficult population.”

“The simple fact is these individuals are difficult to treat,” he said.

He also put pressure on opponents of MSOP to give details and specifics of any individual who has been harmed by their treatment at MSOP. “If that’s the case, then who are they?” he asked. “Who should be released because they are not a danger to society?”

In July, a panel of experts from similar programs in New York, Florida and Wisconsin recommended the unconditional release of two MSOP clients: Eric Terhaar and Rhonda Bailey. They criticized Minnesota’s confinement of Terhaar, whose only offenses were committed as a juvenile, and Bailey, the only woman currently in MSOP. But Frank declined to move them out of the program until he could hear arguments in the class action lawsuit.

A final ruling from Frank could come in the middle of the state’s 2015 legislative session, where a politically divided House and Senate have yet to agree on a path forward for MSOP. Republicans in control of the House prefer to let the court process play out, while Senate Democrats want to move forward on a bill they passed in 2013 that would put regular reviews of sex offenders into law, as well as change the way offenders are committed to the program in the first place.

DFL Gov. Mark Dayton has earmarked money in his budget to implement any changes the court might order the state to make.

“It’s a bit of a blank number right now because we haven’t come forward with proposals, but there will be money required from the Legislature and from the state from the recommendations we will be making, and what I expect the court will require of us,” Dayton said. “It’s going to be expensive and it’s going to be unpopular to take money from anywhere else and put it in another treatment program … but the program has to be constitutional and the federal judge will insist on that, so it’s not a voluntary expenditure but it’s a necessary one.”

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