Judge declares sex offender program unconstitutional; orders state to develop ‘suitable remedies’

Judge Donovan W. Frank
Judge Donovan W. Frank

After more than three years of legal motions, court orders and stern warnings, a federal judge has declared Minnesota’s program for treating its most dangerous sex offenders unconstitutional.

The Wednesday morning ruling from U.S. District Court Judge Donovan Frank said the Minnesota Sex Offender Treatment Program (MSOP) locks up more than 700 sex offenders in maximum-security facilities in Moose Lake and St. Peter with no hope of ever getting out. Most offenders in the program have already completed their prison sentence but were committed to the program by a county judge because they could still pose a danger to society. In the 20-year history of MSOP, only two people have ever been successfully provisionally released from the program. No one has ever been granted full release. 

The ruling doesn’t call for any immediate release of offenders, but it requires state officials, legislators and other stakeholders to present “suitable remedies” for the program at an Aug. 10 hearing.

“It is fundamental to our notions of a free society that we do not imprison citizens because we fear that they might commit a crime in the future,” Frank said in the 76-page ruling. 

Using words like hopelessness” and “despair,” Frank described the situation for clients indefinitely locked in the program. He noted specific clients in the case, including Rhonda Bailey, the only woman ever committed to the program, and Eric Terhaar, an offender who is part of a group of more than 50 people in the program who have no adult criminal record.

Frank also called out lawmakers for repeatedly failing to make changes to the program, even after he called the program “draconian” and outlined issues in a court order last year.

“The Court must emphasize that politics or political pressures cannot trump the fundamental rights of Class Members who, pursuant to state law, have been civilly committed to receive treatment,” wrote Frank. The Constitution protects individual rights even when they are unpopular.” 

In the ruling, Frank lays out 16 things the state and lawmakers could do to address concerns with the program. They include developing less-restrictive alternatives, like halfway houses or group homes, for offenders who are no longer considered a danger to society. The state must also regularly evaluate those in the program. There’s no current requirement for evaluation in state law.

In a statement, Gov. Mark Dayton defended the constitutionality of the program.

“We continue to believe that both the Minnesota Sex Offender Program and the civil commitment statute are constitutional,” Dayton said. “We will work with the Attorney General to defend Minnesota’s law. As the Federal Judge has not ordered any releases, there will be no immediate changes to this program as a result of this ruling.”

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Comments (9)

  1. Submitted by Greg Kapphahn on 06/17/2015 - 01:23 pm.

    This Will Be a Mess

    If we took the same approach to all other offenders – locking up any and all who MIGHT repeat their crimes if they were released, NO ONE would ever be set free after they had served their sentences because a few of them might commit another crime.

    The difference of course, is our paranoid attitude about SEX.

    We will not be able to make any kind of evidence-based, rational choices about sex offenders in this generation of Minnesotans,…

    because so many among us have been raised to have such a deep-seated, irrational fear of our own, very normal sexual desires and urges,…

    harbor a resulting revulsion to the idea of sex in almost any and all forms,…

    and experience a strong sense of guilt over acting on their sexual desires and urges even in the context of heterosexual marriage,…

    with the result that they project their own desires and urges, repressed and ignored as much as possible,…

    onto other people and, because of this, maintain an outrageous level of interest in the sex lives of any and all those they believe to be “deviant” in some way.

    The final result of this is an irrational fear of the slavering rapist pedophile they regard to be at the core of each and every person “civilly committed” to Minnesota’s sex offender program,…

    a fictional creation based on the deep, dark shadows of everything that lies (unconsciously) buried within each of those who harbor such sexual repression,…

    a fiction which, for people operating out of these dysfunctions, cannot likely be revealed to them to be false,…

    since such a revelation would require that those folk look within themselves for the source of that fictional bogey man,…

    and such folk are completely UNable to perform such self examination because what it would reveal would be far too devastating for them.

    These dysfunctions and the complete inadequacy of counseling for victims and perpetrators of sexual abuse,…

    and the likelihood that those who feel they might be inclined to commit sexual offenses dare not seek counseling to help them with such urges because all counselors are “required reporters” and those seeking help are likely to find themselves prosecuted as the result of seeking help,…

    mean that far too many victims continue suffer pain and anguish over being victims even decades after the abuse occurred,…

    and those seeking to avoid become offenders find there is no help available to them.

    Our politicians operate out of such fear of further harming victims who continue to suffer and the reaction of the irrational sex phobic folk (and likely justifiably so),…

    that any action they take forces them to step into a figurative mine field.

    Because of this, changes to this program will have to be ordered directly by the courts.

    • Submitted by joe smith on 06/17/2015 - 04:32 pm.

      There is a HUGE difference between 2 people having consensual sex and rape or molesting a child. That has nothing to do with folks views on consenting adults having sex. They are not even in the same universe. Wow, you have some strange thoughts on how folks look at sex. If that is truly how you view sex I feel sorry for you. Hell, I grew up in the 60’s, summer of love and all of that, I don’t know one person who views our wanting to keep sex offenders locked up with some bizarre deviant outlook on making love and repressed guilt. Wow!!

      • Submitted by Pat Berg on 06/18/2015 - 08:31 am.

        Views on sex

        I don’t think anyone is suggesting that consensual adult sex is the same as rape or child sexual abuse.

        Rather, I think the attention is on the fact that this entire CLASS of crimes is treated differently than all other classes of crimes (also discussed elsewhere on this thread).

        We don’t keep other violent offenders on indefinite detention because they MIGHT re-offend. We release them after they have served their sentence, and then, IF they re-offend, they are incarcerated once again.

        And yet these people did a crime, did the time, and then were “civilly committed” rather than being released.

        Why is that? What’s the difference?

        It appears that the only real difference is because their crimes were sexual in nature. And I believe the point Greg was making (or at least one of the points) was that as a society, we have more of a problem dealing with sex or sexual transgression.

        Why – for example – do movies with all sorts of violence in them still get a “PG” rating and yet throw in a little nudity and sex and suddenly that rating goes up to an “R”? The only explanation I can see is that we – as a society – still get queasy about all things sexual.

        So we lock away sexual offenders for life, and people seem to be okay with that. Look at all the earnest reassurances by our public officials immediately in the wake of this ruling – “Don’t worry – we’re not letting anyone go yet”. The default is still “Lock them away for life”, and because it’s about sex, apparently that’s still okay.

        So just ask yourself, why is that?

  2. Submitted by joe smith on 06/17/2015 - 02:40 pm.

    I don’t agree with Gov Dayton on a whole lot but he is spot on with this one. Once someone can prove sex offenders can be cured, I will listen to alternative but until then keep them outta our society and away from defenseless children, boys, girls and women.

    • Submitted by RB Holbrook on 06/18/2015 - 09:28 am.

      In that case

      Make the criminal sentence life without parole. Cut the baloney about therapy and cures, and straight up admit that this is about punishment.

      I personally have no problem with that. The issue for policymakers is that then, all of the due process protections afforded to criminal defendants would kick in.

  3. Submitted by Paul Udstrand on 06/17/2015 - 03:10 pm.


    I’ve never understood why we’ve been screwing around with this in the first place. After someone has committed a sexual assault three or more times why not just have a life sentence?

  4. Submitted by jason myron on 06/17/2015 - 03:47 pm.

    While I share your revulsion

    for sex offenders, this entire program is an affront to our judicial system. We simply cannot keep people locked up after they’ve served their sentences for what we think they might do.

  5. Submitted by Dennis Tester on 06/17/2015 - 03:56 pm.

    We all knew this would happen

    You can’t keep people locked up indefinitely because you’re afraid, or even convinced, they’ll offend again. Even perverts have constitutional rights.

    If you believe their crime is so heinous, change the sentence to life in prison. Otherwise you have to let them go after they’ve served the sentence you did give them. This isn’t Cuba. Oh wait …

  6. Submitted by Ray Schoch on 06/17/2015 - 11:51 pm.

    With a minor exception

    Except for “This isn’t Cuba. Oh wait …” this is one of those occasions when I’m on the same page, paragraph and line as Mr. Tester. If the crime is so terrible that the offender deserves a life sentence, then give the offender a life sentence. For what little it’s worth, I think the Governor is flat wrong in this instance.

    Besides, if we’re going to lock people up indefinitely because we’re afraid they might do something awful, will all the gun owners be locked up because they *might* use their weapons illegally, or all the drivers who’ve gotten a DUI be locked up for life because they *might* drive again while under the influence? As a teetotaler, the latter might not be such a bad idea, except that it, too, is blatantly unconstitutional. Legitimate governments do not, and cannot be allowed to, punish people for crimes they have not committed, even if we think they *might* commit them.

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