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What a revamped Minnesota Sex Offender Program might look like

MinnPost photo by Briana Bierschbach
Minnesota Sex Offender Program campus in Moose Lake.

Over the last two decades in Wisconsin, hundreds of sex offenders have been released from secure treatment facilities into communities across the state. That’s in stark contrast to what’s happening in Minnesota, where the sex offender treatment program holds more than 700 offenders — but has never fully released a single one.

The differences could become increasingly important as Minnesota grapples with an edict from the courts that its program must be changed.

In June, U.S. District Judge Donovan Frank ruled that the Minnesota Sex Offender Program (MSOP) and its method of treating offenders — most who have already completed their prison sentences — is unconstitutional because it promises treatment but provides little realistic hope of ever being released. Frank has called legislators, Gov. Mark Dayton and other stakeholders into his St. Paul courtroom on Aug. 10 to present “suitable remedies” to problems he outlined with the program. 

“This case has never been about the immediate release of any single committed individual or committed individuals,” Frank wrote in his 76-page ruling after weeks of trial in a class action lawsuit against MSOP. “Recognizing that the MSOP system is unconstitutional, there may well be changes that could be made immediately, short of ordering the closure of the facilities, to remedy this problem.”

Despite Frank’s ruling, there are those in Minnesota — most notably the lawmakers who have resisted changes in the past — who believe that even after the dust settles, MSOP shouldn’t look too different from what the way it does today.

For others, however, re-imagining a different MSOP isn’t that difficult. Over the years, the controversial program has been dissected by expert panels, task forces, academics, the state legislative auditor and now the courts — with many of those involved reaching very similar conclusions about how Minnesota could administer its sex offender program in a way that would make it both more effective, and constitutional.  

Wisconsin and New York as models

When it comes to treating sexual offenders, Minnesota and Wisconsin couldn’t be more different. Both states set up their respective civil commitment programs to treat sexually dangerous offenders about two decades ago, but over that time period, Wisconsin has granted full release to more than 100 offenders and supervised release to at least 130 more. And though there are more than 350 offenders currently confined in the secure Sand Ridge Facility in Mauston, they’re reviewed regularly to see how they are progressing through their treatment. Many will be considered for release in the coming years.

In Minnesota, only two people have been successfully released — both on a provisional basis — from behind the secure treatment facilities in Moose Lake and St. Peter. And since the 2003 murder of college student Dru Sjodin at the hands of a Minnesota sex offender released from prison six months before the killing, the population living inside MSOP has spiked.

One of the key differences between the programs is Wisconsin’s regular review of how clients are progressing through treatment. One year after an offender is committed to the program, the process of review can begin, even while the state is continually setting up less-restrictive options for the offender to live outside of the facility.

In Minnesota, there’s no requirement in law to regularly review an offender’s status, making it harder to move the person through the various phases of treatment in MSOP, experts say. And though experts suggest that every offender should be reviewed at least once a year, such a change would require MSOP to hire considerably more clinical psychologists and mental health professionals.

“[In Wisconsin], they look at people periodically to determine whether they pose any risk and can be appropriately managed in the community,” said Eric Janus, president and dean of the William Mitchell College of Law, who has written a book on state sex offender laws. “They’ve had really good results moving people into community-based settings, and my understanding is without any tragic consequences.” 

New York takes that model a step further, allowing some offenders to move into less-restrictive facilities on the front-end of their civil-commitment. At the end of an offender’s prison sentence in New York, they are reviewed for their potential danger to society by clinical psychologists. The more dangerous offenders are sent to a secure treatment facility, while others are sent to Strict and Intensive Supervision and Treatment (SIST) in community-based settings. As of 2012, New York put 114 people in less-restrictive environments instead of locked up in a secure facility.

In Minnesota, being admitted to MSOP through civil commitment is the only option for treatment, one some experts say isn’t appropriate for all offenders. 

Last summer, an expert panel from sex offender programs in Florida, Wisconsin and New York told Frank’s courtroom that two offenders, Eric Terhaar and Rhonda Bailey, should be released or relocated from the program immediately. Terhaar is part of a group of more than 60 adults in the program who were sent to MSOP for offenses they committed as juveniles. The experts said such offenders are far less likely to reoffend than those who committed sexual offenses as adults, and their treatment should be separate from that of others in the program. Bailey is the only woman ever committed to MSOP and is treated in a facility with all other men.

“It breaks every rule research tells us we should follow,” Robin Wilson, one of the court-appointed experts, said in August. Officials from both New York and Wisconsin sex offender treatment programs declined to comment for this story because they were involved in the class action suit as part of an expert panel appointed by the court.

Dan Gustafson, an attorney for the clients who sued the state over MSOP, plans to point to the New York model as a good alternative to current MSOP practices at the Aug. 10 hearing. For Gustafson, the key difference between the Minnesota and New York programs is that the latter takes “the important decision making functions out of the political leadership and [puts it] into the hands of medical professionals,” he said. “The decisions are being made based off professional judgments, not political judgments.”

Legislators consider less restrictive options 

Some lawmakers have their own ideas.

DFL Sen. Kathy Sheran, whose district includes the St. Peter sex offender campus, is among a small group of lawmakers who want to see the program overhauled.

In 2013, she passed a bill out of the state Senate — with bipartisan votes —  that required more frequent review of offenders and set up new facilities for the less dangerous clients in the program. The bill also established a two-step hearing process that aimed to apply consistency in in civil commitments, which are determined now by judges in all 87 counties. The first hearing would determine whether civil commitment was needed; the second would decided what kind of placement is necessary.

This year, Sheran wanted to add a new provision to her bill, one suggested by Republicans in the Senate: Create indeterminate sentences for sex offenders to put more burden on prisons to determine whether offenders are truly ready for release.

“There’s so much misinformation,” Sheran said. “Most people assume everyone in MSOP are the worst of the worst, but the truth is that there are huge variations in the people locked up in there. Some are highly dangerous, some are not.” 

Proposals may not go far enough

But work on a bill has repeatedly stalled in the state House, under both DFL and GOP control. Republicans in control of the chamber now maintain the program is constitutional, and is the best option for protecting the public. There are risks in releasing more offenders: 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.

Rep. Nick Zerwas, R-Big Lake, who has been involved in MSOP negotiations in the past, prefers a solution that takes some of the more vulnerable populations inside the program —  the elderly or those who have cognitive disabilities that make treatment difficult —  outside the razor wire and into a less restrictive facility. The oldest client inside MSOP is 93. The key for Republicans: that the facility be located on the MSOP campuses in Moose Lake or St. Peter, not in any new communities.

“There  is a way to get people who do not belong or need to be behind two layers of razor wire, because they are sick and they are significantly older or they have to have the mental capacity to work through the treatment programs,” Zerwas said.

But that solution might not go far enough to satisfy the judge that the program is constitutional, Janus said.

“You can’t generalize. It’s important and critical to the constitutionality that everyone be assessed individually,” he said. “For some people that will be fine solution, but the key to all of this is to start talking about people in MSOP as individuals, not as part of some big group.”

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Comments (3)

  1. Submitted by Ray Schoch on 07/01/2015 - 11:59 am.

    I smell a double standard

    Not to argue that everyone ought to be released – obviously there are some people who are dangerous to society, and who ought to be segregated from the rest of us – but most of what I read in this and other stories about MSOP is the expression of what, for lack of a better term, I’ll call Puritanical Bigotry. Why should sexual offenses be treated as more heinous than other serious crimes against persons such as murder or manslaughter? Plenty of people – in Minnesota, Wisconsin, New York and elsewhere – have killed people, whether through drunken rage, mental illness, an ongoing feud, etc., without having to spend the rest of their lives behind “…two layers of razor wire.”

    I hope Judge Frank gives the state absolutely no wiggle room on this at all, and if legislators, in their less-than-honest faux wisdom, really want to throw the book at sex offenders, why is there not a movement in the legislature to go after – with a vengeance – the numerous priests and higher-up officials in the several Catholic archdiocese where there’s ample evidence of priests and sexual offenders, and their supervisors, up to and including archbishops, providing cover for those offenders so that they’re never brought to trial for the same kinds of offenses that have “civilians” serving long (or in this case interminable) sentences behind bars?

    I believe the appropriate constitutional phrase is “equal treatment under the law.” There are no constitutional grounds for singling out sexual offenders for especially lengthy or harsh treatment by the state compared to others who have committed high-level felonies. Different treatment, perhaps, but not more harsh. There’s no other planet we can send people to who have committed crimes we find especially repugnant. We’d better learn how to genuinely treat them so they can return to society as productive citizens. In the rare cases where that’s not possible, then we ought to stop pretending that they’re receiving treatment, and admit up front that what we’re after as a society is vengeance and/or retribution.

  2. Submitted by David Nisker on 07/05/2015 - 12:38 am.

    Mental Disorder or Political Nonesence

    It seems that the states that have instituted so called “sexually violent predaotr” laws such as MN have done just what the Supreme Court’s Justice Kennedy feared.

    The evidence the Hon. Frank discovered in the MN scheme was the reality that any contentions that those subjected to SVPA are afforded with rational “assessments” and adequate “treatment” “were adopted as a sham or mere pretext … [indicative of] the forbidden purpose to punish.” (Kansas v. Hendricks (1997) 521 U.S. 346, 371 (Kennedy, J., concurring))

    Ray Schoch accurately notes the absurdity of singling out former sex offenders as individuals who should somehow be devoid of protections under the U.S. Constitution because of their being politically unpopular citizens. Part of the blame, for the unconstitution MN scheme’s existence, is the rabid hatred fueled by media reports that fail to note that the overwhelming majority of sex offenses occur by individuals who have never before been convicted of having committed a sex crime.

    Further, the media protrays the rare cases of strangers committing sex crimes against their victims as being a widespread problem when in reality over 90% of sex crimes are known to be committed by family and friends to the victims. “Stranger danger” is rediculous considering this reality. Your child is as likely to be kidnapped and raped by a stranger as he/she is likely to die by being struck by lightning.

    Hopefully, the fueling of criminal (unconnstitutional) behavior by the media through misleading information will come to an end. Perhaps if some of the conspirators and accomplices, to the injustices the victims of the MN fake “civil commitment” scheme, face criminal prosecution such heinous crimes will be less appealing to government agents.

    Right now, the light is finally being shone upon the true victims that MN needs to now be concerned with – those the MN has created through this abomination of justice called “civil commitment”.

  3. Submitted by Ray Schmitz on 07/05/2015 - 04:01 pm.

    sex offenders

    I was part of the task force that wrote the commitment statute and used it for years prior to retirement.
    Couple issues, comparing to other states always needs to have full review of criminal statures also since if they have significantly longer sentences it could impact the individuals in their programs.
    Little history, the commitment law was written to preserve the determinate sentencing policies in Minnesota, the judge criticizes prosecutors for balancing plea agreements to later commitment, but that is a necessary part of our determinate, relatively short sentences. While some have increased we would still need to recognize that prosecutors could be unwilling to agree to pleas without the ability to look back at those few dangerous offenders, remember that we do not have the benefit of any offender evaluation or other history prior to the plea.
    I agree that indeterminate sentences, for future offenders, would eliminate the need for commitment, but we need to have this safety for those who are now in prison.
    I am amazed at the ease of outside agencies criticizing our system, remember that the offender has been evaluated by at least two and perhaps three psychologists, been judged by the trial judge and in many cases reviewed by the court of appeals, as well as having been managed in the prison system as well as the court system for years, prosecutors do not fill these lightly, they are a lot of time and expense, the county agencies involved also make every effort to eliminate unnecessary proceedings.

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