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Why an impending ruling on Minnesota’s sex offender program may force lawmakers to convene a special session

Attempts to address problems with MSOP have once again stalled in the Legislature, despite all expectations that a federal judge is about to declare the program unconstitutional

Testimony wrapped last month on a class-action lawsuit representing more than 700 offenders locked up in the Minnesota Sex Offender Program (MSOP) campuses in Moose Lake, above, and St. Peter.
MinnPost photo by Briana Bierschbach

The countdown has begun. 

After three years of legal motions, court orders and stern warnings from a federal judge, the Minnesota Legislature will finally find out whether the state-operated program to treat its most dangerous sex offenders passes constitutional muster.

Testimony wrapped last month on a class-action lawsuit representing more than 700 offenders locked up in the Minnesota Sex Offender Program (MSOP) campuses in Moose Lake and St. Peter. The case argues the state is violating the offenders’ rights by locking them up at high-security treatment facilities with little hope of release (even though most have already served prison sentences): Only three people have ever been released in the 20-year history of the program.

On April 15, attorneys filed the final paperwork in the case, giving U.S. District Judge Donovan Frank 60 days (until June 15) to make his ruling.

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But the clock will run out even sooner for legislators. The 2015 legislative session, lawmakers’ last chance to make changes to the program, will come to a close on May 18.

Most bets are that Frank will declare the program unconstitutional and order changes. Back in February of 2014, Frank issued an order calling the program “draconian” and “broken” and seriously questioned its constitutionality. He asked legislators to address his concerns during the 2014 session, but efforts to fix the program stalled in the middle of a heated campaign for the state House and the governor’s office.

Again this session, attempts to address issues with MSOP have stalled in St. Paul with just weeks left on the calendar, and some lawmakers fear Frank’s ruling will come with little or no time left to do anything.

“I think we’ve been sitting in this spot for awhile thinking, ‘We are going to be out of time,’” said Rep. Dan Schoen, DFL-Cottage Grove, who is carrying legislation to reform the program. “It’s going to be ruled unconstitutional, he’s pretty much said that. At what point can a federal judge give enough warnings? He’s been kind of like: ‘Hey buddy, I’m not going to say it today, but just so you’re ready, it’s probably going to be unconstitutional.’”

Fix stalls in the House, again

Frank won’t comment on an ongoing case, but that hasn’t kept legislators from speculating about what his decision could mean in St. Paul. The biggest fear is the judge will rule the program is unconstitutional shortly after session has concluded, requiring lawmakers to come back to fix the program in a special session later this year.

“That’s been possible for over a year now,” Schoen said. “There will be a special session, because [any fix] will be expensive.”

In 2013, senators on both sides of the aisle passed a bill that adopted many recommendations from a court-appointed task force set up to review program. The proposal would have put only the most dangerous offenders in the program, while others would be placed in a new, less-restricted environment. It also established a two-step hearing process that would determine if civil commitment to the program is needed and, if necessary, the terms of that commitment.

But the proposal has repeatedly stalled in the House, where Republicans and Democrats have butted heads over a solution that would both address the court’s concerns and keep the public safe. In 2014, under a DFL-controlled House, the bill failed because there was no buy-in from Republicans, and Democrats feared any solution that involved moving some offenders outside of the razor-wire would be used against them on the campaign trail.

This session, with the House under GOP control, there’s been even less talk of a fix. Rep Nick Zerwas, R-Elk River, says Republicans prefer an alternative that creates a less-restrictive living environment for the more elderly and impaired offenders in MSOP on the campuses of Moose Lake and St. Peter. But they didn’t have any hearings on the bill this session, and they’ve also argued the program is constitutional, siding with the Minnesota Attorney General’s Office in the lawsuit.

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“This is going to be a huge policy discussion and there isn’t just going to be time between now and the end of session, and we felt it wasn’t appropriate to move forward while the trial was ongoing a few blocks away,” Zerwas said. “I think the next thing we are waiting for really is a ruling from the judge.”

DFL Gov. Mark Dayton has proposed $7 million in his budget to make some small fixes to the program that have been recommended by experts. The additional funding would help pay for individual evaluations of clients every other year and for the cost of moving 50 clients found suitable by the courts for less restrictive treatment settings within MSOP. It would also increase funding for a special court panel to handle petitions from offenders for transfer, provisional discharge and full discharge. The number of clients who have reached Community Preparation Services, the final phase of treatment before release, has grown from 10 at the end of 2011 to 32 today, according to the Department of Human Services.

“I assume the federal judge is aware of our legislative time timetable and that almost anything in terms of policy and practice and certainly cost is going to require legislative approval,” said Dayton. “The clock is already well past the alarm bell in that regard. We have our own set of realities and restrictions to deal with. One is we can’t spend money the Legislature hasn’t appropriated. The clock is ticking.”

Special session possible?

Senate Majority Leader Tom Bakk has been particularly frustrated by the issue, given that the upper chamber passed some fixes to the program back in 2013, with Democratic and Republican votes. But with no movement in the House, Bakk said he sees no reason to make senators take that vote again.

“The Senate got pretty nicked up in 2013,” Bakk said. “We got several letters from judge Frank where he basically said this program is going to be unconstitutional and I’m going to give you some time to fix it. We passed a bill in 2013. We couldn’t get the House to take it up. It’s not even a matter of partisanship. We couldn’t get a Democratic House to do it, now we can’t get a Republican House to do it. We aren’t going to pass bills again when [House] Speaker [Kurt Daudt] has been very clear they are not going to take it up.”

He’s also worried that a special session this summer or fall to take up any recommendations from the courts will be nearly impossible: A massive restoration project will completely take over the state Capitol building as soon as the 2015 session adjourns.

“When this session ends, the Capitol is closed. This building is being turned over to the contractors, including the House chamber,” he said. “There is no opportunity to come back to the Capitol for a special session in June, or July or this fall. There is no Capitol to come back to. Would we have to figure something out if the governor called a special session? I guess so, but it would be pretty difficult to do that.”

Dan Gustafson, the lead attorney arguing the program is unconstitutional on behalf of MSOP clients, said if he wins the case there’s no way around some kind of legislative action. “Our claim is that the statute is unconstitutional, not only the way it is written, but also the way it is applied,” he said.

He imagines a scenario where Frank makes his ruling, gives lawmakers a timetable to come up with recommendations to fix the program, and once an agreement is reached, a special session can be called. Frank has expedited the case over the last year, and Gustafson doesn’t imagine he will be interested in drawing out a resolution any longer.

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“This case has been going on for three years,” he said. “He is not going to be interested in any sort of response that says, ‘We will fix it when we get around to it.’”