What’s next for the Minnesota Sex Offender Program?

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

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.

“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.”

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.”

Comments (7)

  1. Submitted by Mike Schumann on 06/18/2015 - 11:07 am.

    MN Sex Offender Program

    This program is crazy. It’s never going to get changed unless the judge sets a date in the very near future when he is going to start releasing inmates if changes aren’t implemented.

    If the state wants to lock up sex offenders for life, the criminal statutes should be changed accordingly. The current system is totally unconstitutional.

  2. Submitted by Peter Mikkalson on 06/18/2015 - 11:10 am.

    Re: A shameful chapter…

    of the wholesale denial of constitutional liberties ascribed to each citizen (convicted of a crime or not) and a chicken sh*t government (executive, legislative and federal/state judicial) incapable of securing any future beyond their own at the next election. Disgusting.

  3. Submitted by howard miller on 06/18/2015 - 12:26 pm.

    and what about?

    Innocent people imprisoned after copping a plea because they’ve been warned away from going to trial (the appropriate step per the Constitution) and losing their right to property, freedom and to vote?

    People committed without due process, whether for 72 hours or longer (involuntary commitment)?

    People subjected to guardianship by probate courts without just cause or due process?

    The disability law center, MN ACLU and Judge Frank are doing yeoman’s work, but why aren’t more Minnesotans interested in protecting our civil and human rights! How do these situations come to pass in the first place?

  4. Submitted by William Hansen on 06/18/2015 - 01:30 pm.

    What do other states/countries do?

    A well written story, as usual Ms Bierschbach. It would be useful journalism to take a look at what other states and countries (Norway for instance) do.

  5. Submitted by Joel Stegner on 06/18/2015 - 02:37 pm.

    Electronic monitoring of sex offenders

    One obvious outcome of the decision will be that fewer sex offenders will be behind bars. When they are out in the community, there really is no continuous monitoring, which makes it much easier for them to reoffend. If we can put tracking systems in automobiles and pets, why not sex offenders? Then if they are prohibited from being certain places, it will be easier to know immediately when they are violating the terms of their release, not to mention the deterrence value. If their bad behavior comes out when they are drinking or using drugs,institute random alcohol and drug tests. Given how much is spent to put each one of them behind bars,justifying a significant technology investment for continuous monitoring should be justifiable.

    • Submitted by Pat Berg on 06/18/2015 - 04:19 pm.

      Be careful what you wish for . . . . .

      Supreme Court has already looked at this. Here’s an article about it:

      http://www.acslaw.org/acsblog/scotus-says-ankle-monitoring-of-sex-offender-is-a-search

      From the conclusion of the article:

      “If the search in Grady is upheld as reasonable, look for the government to seek attachment of intrusive monitoring devices in less reprehensible circumstances. Consider, for example, how many people die each year in speed-related automobile accidents. Perhaps the government will assert that it should be entitled to access and monitor the microchip data from the vehicles of repeat traffic offenders, i.e., those convicted of more than three traffic violations . . . And that’s just the tip of the iceberg.”

  6. Submitted by James Hamilton on 06/18/2015 - 03:31 pm.

    Perhaps it’s time to become part of the solution, sir.

    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.”

    I was present a few years ago when former Supreme Court Judge Eric Magnuson and others reported to the House Health and Human Services Policy Committee on this issue. It was evident even then that Judge Frank was going to rule that the program was constitutionally deficient. Yet, not a single member of the committee had the nerve to take the simplest step toward reform, i.e., requiring an action plan be developed and submitted for the following year.

    It’s time for those who’ve shirked their responsibilities in the past to step up and do their jobs now, before Judge Frank does it for them. That or resign your positions.

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