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Other states’ experiences offer clues to the future of Minnesota Sex Offender Program

To get a sense of what’s next for MSOP, which was recently declared unconstitutional, lawyers and experts are looking at a pair of court battles that resulted in two very different outcomes. 

In June, U.S. District Judge Donovan Frank ruled Minnesota’s 21-year-old sex offender program is unconstitutional because it locks up more than 700 sex offenders under the promise of treatment, yet rarely lets anyone out.
MinnPost photo by Briana Bierschbach

The judge’s ruling was straightforward: The state’s sex offender program was unconstitutional and needed immediate and long-lasting changes.  

At the time, sex offenders were being sent to the program after completing their prison sentences because they were still considered a danger to the public. But even with treatment, few people were getting out of the prison-like sex offender facility. The judge said the practice amounted to imprisoning people after they’d served their prison time, and thus was a violation of offenders’ constitutional rights. 

For anyone paying attention to the recent battle over the constitutionality of Minnesota’s sex offender program, those facts may sound familiar. But the judge’s order in this case wasn’t issued in Minnesota, or in this century. It was 1994, and the case was in Washington, where a judge ruled the state’s sex offender program unconstitutional, touching off an unprecedented 13 years of control of the program by the courts. 

Like Minnesota, 19 other states have programs to civilly commit and treat sex offenders, but the North Star state has one of the oldest sex offender treatment programs in the country and commits people at the highest rate per capita. In June, U.S. District Judge Donovan Frank ruled Minnesota’s 21-year-old sex offender program is unconstitutional because it locks up more than 700 sex offenders under the promise of treatment, yet rarely lets anyone out. 

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The U.S. Supreme Court upheld the existence of civil commitment laws as long as they were therapeutic, not punitive. But a handful of states have gone to court over arguments about how the programs are run. Just last week, a federal judge ruled that the way Missouri’s sex offender treatment program is run is unconstitutional because it rarely releases its patients.

Minnesota lawmakers have shown little interest in making changes to the Minnesota Sex Offender Program (MSOP), despite a court-ordered hearing last month called to prod officials into action. (Another hearing is planned for the end of September.) 

To get a sense of what may happen next in Minnesota — and  how the state may ultimately reconcile its desire to treat sex offenders with those offenders’ constitutional rights — lawyers and experts are looking at court battles in two different states: Washington, where lawmakers didn’t take action and the courts took over; and Texas, where threats of court action led to immediate changes to sex offender treatment. 

More than a decade of judicial oversight

In 1990, the Washington Legislature was under pressure. A 7-year-old boy was raped, sexually mutilated and left for dead in the woods near Tacoma. The man who committed the crime, Earl Shriner, had been a known quantity to law enforcement. He had a 24-year history of assaulting juveniles and was released from prison after attempts to involuntarily commit him to a mental hospital failed. After the boy was found, legislators quickly set up a different path to lock up offenders like Shriner: involuntary sex offender civil commitment.

The way the law was set up, prisoners who committed a sexual offense and were still considered dangerous would be recommended for commitment at or near the end of their prison sentence. They could only get out when they proved they had made progress in treatment. The law was the first of its kind in the nation.

Richard Turay seemed like the perfect candidate for the state’s new sex offender treatment program. He was a repeat offender, convicted of rape charges in Washington in 1977, 1979 and 1986. Then, in 1990, his parole was revoked for allegedly entering a woman’s hotel room and assaulting her.

But in 1991, instead of submitting to the new law, Turay took the state to court over it, attempting to overthrow the statute and the notion that he and other offenders had to receive treatment after they served their time in prison. His attempt failed in the courts the first time, but in 1994, Turay won, with U.S. District Court Judge William Dwyer ruling that Washington’s Special Commitment Center acted “too much like a prison and not enough like a mental-health facility.”

Under the watchful eye of the courts, the Washington Legislature made a series of improvements to the program, including funding a new, less-restrictive building for the program on McNeil Island. But the changes still did not provide the opportunity for patients to be released, something that Dwyer’s ruling required. So in 2000, Dwyer took control of the sex offender program and placed a special master in charge of overseeing its operation. 

Over the course of 13 years, Dwyer imposed millions of dollars of fines on the state for failing to follow through on changes he ordered. He also released a portion of the patient population, although the exact number of those released has not been revealed (the court cited patient privacy issues). In 2007, the historic federal oversight of the Washington program ended, but only after a new judge lifted the injunction.

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That long-term oversight scenario is not far-fetched in Minnesota, experts say, where Judge Frank has already appointed former state Supreme Court Chief Justice Eric Magnuson as a special master to oversee potential changes to the program. Magnuson served on a special task force charged with reviewing the controversial program. He recommended sweeping changes to MSOP, including implementing more frequent reviews of offenders’ treatment and setting up less restrictive settings to place offenders who aren’t dangerous to the public.

“We fully expect that the judge will order that the program will report to [Magnuson],” said Dan Gustafson, the attorney representing sex offenders in the Minnesota program. 

But in that scenario change isn’t likely to come easy — or fast. In Washington, the changes took more than a decade to see through. “This continued to be a struggle for 13 years,” said Eric Janus, an expert on MSOP and the former dean of the William Mitchell College of Law. “The court held the state in contempt and fined the Legislature. The state was extremely reticent to do anything. I think that the problems here in Minnesota are more entrenched and larger than they were in Washington. Lets face it, we have more than 700 people locked up here, and … we should really have no more than 200 or 300 people confined. That means there are 400 to 500 people that need to be dealt with.”

A legislative solution in Texas — for now

Within hours of Frank’s ruling in Minnesota in June, nearly 1,200 miles away, Texas Gov. Greg Abbott signed into law bipartisan changes to the Lone Star state’s own troubled sex offender treatment program.

The similarities between Texas and Minnesota were impossible to ignore. Both programs had been challenged in court for years, and both were challenged for the way in which their programs were administered. Texas’ civil commitment program was created in 1999 and locked up more than 350 men.

But something happened in Texas that didn’t in Minnesota (or in Washington): Lawmakers got together and hashed out some fixes to the state’s sex offender treatment.

Among those fixes: Offenders in the program would no longer be sent back to prison or criminally punished for minor rule violations. (Texas allowed offenders to be sent back to prison for things like arriving to treatment late or failing to fully charge their ankle monitors.) The Texas program was also criticized for not having specific guidelines for treatment. Under the new laws, offenders in Texas would have to complete a five-tiered treatment program, and be given increasing freedom as they complete each tier.

But even with the new laws, critics of Texas’ program say it remains at risk of federal court action. Several lawsuits are ongoing, and a judge could still decide not enough has been done to fix the program. 

“There were some good changes made, but none of the changes politicians made overturned the program,” said Melissa Hamilton, a visiting criminal justice law professor at the University of Houston who testified in court on the Texas program. “They tried to to emphasize the treatment side of it, to try to actually get people through the program. Texas politicians tend to be very conservative, but they had to lead on this one. One reason there was bipartisan support is the money. These programs are extremely expensive here.”

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Lawmakers reluctant to act

The same is true in Minnesota (each offender in MSOP costs the state roughly $120,000 per year) and a handful of lawmakers have pushed for a legislative solution. Doing so would allow lawmakers, as they do in Texas, to be able to dictate how state money is spent to change the program.

Dayton is pushing for a proposal that would spend up to $15 million a year for new, supervised community facilities for sex offenders. An additional $7 million would be used to do biennial evaluations of the offenders in MSOP to see how they are progressing in treatment. But Frank has called for far deeper reforms, and Dayton would need approval from the Legislature. Past reforms have stalled in the state House, where lawmakers are on the ballot every two years and neither side could agree to a solution that would get bipartisan support.

In the end, the problem may remain in the hands of the judicial branch. In states where lawmakers fail to act, the courts often do, Hamilton said. “That is the role of federal judges, who are more independent to tackle these issues,” she said. “They don’t face the re-election backlash, so they are more objective.”