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What’s next for the Minnesota Sex Offender Program?

U.S. District Court Judge Donovan Frank’s ruling didn’t direct the state to release any offenders. But it’s clear big changes are on the horizon. 

MSOP currently houses more than 700 sex offenders in its maximum-security facilities in Moose Lake, above, and St. Peter.
MinnPost photo by Briana Bierschbach

It shouldn’t have come as a surprise.

Last February, a federal judge warned Minnesota lawmakers that a state program to treat its most dangerous sex offenders probably didn’t pass constitutional muster. If that wasn’t clear enough, U.S. District Judge Donovan Frank drove the point home in the word choices peppered throughout his court order: “draconian,” “clearly broken,” “systemic problems” and “grave deficiencies.” 

Despite his stern warnings to make changes before it was too late, two legislative sessions passed with no action from lawmakers. On Wednesday, Frank issued a 76-page ruling on a class action lawsuit on behalf of offenders in the program to make his intentions crystal clear: The Minnesota Sex Offender Program (MSOP) is unconstitutional and must be changed.

The crux of the constitutional problem is the program’s low rate of release. MSOP currently houses more than 700 sex offenders in its maximum-security facilities in Moose Lake and St. Peter, where most of the offenders go after having already served their prison sentences. There, offenders become clients and receive treatment. But in the 20-year history of the program, only two people have ever been successfully released on a provisional basis. No one has ever been given full, unconditional release from MSOP, leading clients to liken the program to Minnesota’s version of Guantanamo. Today, Minnesota commits more sex offenders per capita than any other state in the nation.

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“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 wrote in his ruling. “This strikes at the very heart of what it means to be a free society where liberty is a primary value of our heritage.”

But while Frank’s intentions have become clear, the future of the program is not. The ruling didn’t order any immediate changes to MSOP — or direct the state to release any offenders. And it still leaves the solution to the problem partially in the hands of lawmakers, the very group that has repeatedly punted on finding a fix. Here’s a breakdown of what the ruling means, and what’s next for the program in Minnesota. 

So why, specifically, is MSOP unconstitutional?
In his ruling, Frank specifically argues with the way Minnesota’s civil commitment statute for sex offenders is written. Among the problems: The law doesn’t require periodic review of offenders in the program and how they are progressing through treatment; it’s far easier for a judge to commit someone to the program than it is for an offender to petition to get out; and it puts the burden on the individual, not the state, to prove they are progressing through treatment. What’s more, offenders must prove they are ready for a life outside the razor wire in less-restrictive facilities, when no less-restrictive options have been made available, he said. 

These things combined have made it nearly impossible for an offender to be released, violating their constitutional rights. It has also led to a hopeless “environment” and “emotional climate of despair” among clients at MSOP, he said.

So what’s the fix?
In the ruling, the judge lays out 16 specific things he’d like to see changed. At the top of the list is a requirement for all current clients to be re-evaluated, starting with the oldest and moving on to those with substantive physical or intellectual disabilities; and then to the offenders in the program with no adult criminal record, only juvenile offenses. He also wants periodic reviews of offenders and the risk they pose to society. On top of that, Frank says the state should create new, less-restrictive places to put offenders, and provide them with qualified defense counsel and experts as they are petitioning for release. All of these changes should be monitored by a “special master,” he said.

What’s the next step?
Big changes like that can’t happen without the sign-off of lawmakers — and probably some new funding. Frank has ordered an Aug. 10 hearing where all stakeholders, including legislators and representatives of the executive branch, will be asked to present “suitable remedies” to the problems with the program. Specifically, Frank wants to see DFL Gov. Mark Dayton, Republican House Speaker Kurt Daudt, and DFL Senate Majority Leader Tom Bakk at the hearing.

Judge Donovan W. Frank
Judge Donovan W. Frank

Does that mean politicians are now on board with making changes?
Not exactly. While Frank wants them to participate in finding a solution, lawmakers weren’t enthusiastically jumping at the opportunity on Wednesday. In a statement, Dayton defended the program’s constitutionality. The state has the option to appeal the ruling, but no one in Dayton’s administration has said yet whether they will do that. “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.”

Republican House Health and Human Services Finance Chairman Matt Dean was even more dismissive, saying the Legislature is “not a party to this lawsuit and does not have any legal obligation to respond.”

“While we reject Judge Frank’s opinion regarding the constitutionality of the program,” Dean continued, “the Legislature will continue to work with MSOP to improve the program in a matter that protects our primary obligation to protect vulnerable Minnesotans.”

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Dan Gustafson, the attorney representing MSOP clients, said he understands why politicians are wary of finding a fix, but time has run out. “Who wants to be the first person to stand up and say I’m in favor of releasing sex offenders?” he said. “There’s just no reason why any political leader would do that.” 

Do any lawmakers support changing the program?
Support might be overstating it, but Bakk has acknowledged the state needs to make changes to the program. In 2013, the state Senate passed legislation 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 action on that legislation has repeatedly stalled in the House.

Rep. Nick Zerwas, R-Elk River, who has worked with the administration on reforms in the past, said he could see bipartisan agreement in adopting recommendations to standardize the process of civil commitment across the state. Republicans also support moving some offenders who are less likely to be a danger to the public — the elderly and those who have intellectual and physical disabilities — into less-restrictive facilities: outside the razor wire but still on the campus of Moose Lake or St. Peter. 

Will any offenders be released?
Not right away, but if lawmakers don’t make changes, Frank has the option to release people from the program. In his ruling, he calls out specific groups of offenders who are particularly concerning to him, including Rhonda Bailey, the only woman ever committed to the program. Bailey is currently being treated in MSOP with all men. He also mentions Eric Terhaar, an offender who is part of a class of more than 50 clients in the program who have no adult criminal record. 

Currently, there are about 40 offenders in the final phase of treatment before release, Department of Human Services Commissioner Lucinda Jesson said. That’s an increase from recent years, and her staff has also put out requests to halfway houses and group homes around the state for potential less-restrictive options. “I don’t think it’s ever easy to be a defendant in a lawsuit, but having said that, I don’t think it should be awkward to continue to improve the program,” Jesson said. “We have made efforts already and we will continue to make improvements.”

Will changing the program be expensive?
The problem is expensive, and so is the solution. As of last July, the cost of housing an offender in MSOP was more than $120,000 per year, three times more than it costs to keep them in a correctional facility. And the number of people in the program has exploded since 2003, when North Dakota State college student Dru Sjodin was kidnapped and murdered by a Minnesota sex offender who was released after his prison sentence but not committed to the program. By 2022, officials anticipate the population inside MSOP will grow to 1,215 individuals.

In Dayton’s initial budget proposal, he recommended spending $6.8 million over the next two years to evaluate offenders every other year and cover one-time transitional costs for offenders to less-restrictive facilities. He also proposed $10.7 million in a bonding proposal to design and construct a community-based residential treatment alternative to MSOP. Neither proposal gained traction with legislators in the 2015 session. 

Will Dayton have to call a special session to deal with this? 
That part is unclear. Frank didn’t outline any specific timeline, outside of the Aug. 10 hearing, and he didn’t lay out what should happen next. Gustafson said it will take time to come up with changes and implement them, but after three years of waiting for legislators to act, he doesn’t expect the federal courts will let lawmakers “wring their hands” over a solution for much longer. “This is an indictment of the Minnesota political system,” he said. “These issues are not new to the state of Minnesota, but the political system has failed to act on it.”