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Hearing offers prelude to coming fight over Minnesota Sex Offender Program reforms

MinnPost photo by Briana Bierschbach
As soon as U.S. District Judge Donovan Frank issues his orders to make specific changes to MSOP, the state has already said it will appeal his ruling to the Eighth Circuit Court of Appeals.

The letters to U.S. District Judge Donovan Frank have come from all sides: from sex offenders locked up inside the state’s treatment program who are hoping to get out; from the victims and their families who hope those same sex offenders never see freedom.

All of it is in anticipation of what lawyers in Frank’s St. Paul courtroom Wednesday referred to as “Judgment Day.” 

In June, Frank ruled that the 20-year-old Minnesota Sex Offender Treatment program is unconstitutional. But to the surprise of some, he didn’t order any specific changes to the program at that time, instead calling state lawmakers into his courtroom in August to try to hash out a solution.

But lawmakers showed little interest in participating, and Frank is running out of options. His next move — which will come sometime in the next 30 days — is to order the state to make specific changes to the troubled program, which the judge says offers the promise of treatment but has instead served as a place to indefinitely keep sex offenders locked away from the public.

“They are due their day in court,” said Dan Gustafson, an attorney representing sex offenders in the program.

Case could drag on for years

It’s been a long road to get to get even this far. The class-action lawsuit that led to the unconstitutional ruling was first filed four years ago; Frank ruled the program unconstitutional four months ago.

But as Wednesday’s proceedings made clear, the case has the potential to drag on much, much longer. As soon as Frank issues his orders to make specific changes to MSOP, the state has already said it will appeal his ruling to the Eighth Circuit Court of Appeals. State officials were already readying their argument before they arrived in Frank’s courtroom Wednesday, filing an affidavit in federal court last week that reasoned that funding and staff shortages — not to mention opposition from the public — meant it would be unrealistic to enforce reforms. 

“The program, as it is being run today, is constitutional and we ought to be talking about those reforms in the Legislature,” said Department of Human Services Commissioner Lucinda Jesson, who oversees the program. “It shouldn’t be directed by the court.” 

If the Eighth Circuit imposes a stay on Frank’s order — a distinct possibility — any changes he orders would have to halt until there’s a ruling in the appeal case. That could mean another 12 to 24 months before anything happens, according to Gustafson. 

How far will reforms go? 

In the short term, the big question is how far Frank will go in his reforms. He laid out more than a dozen changes he’d like to see to the program in his June ruling, from immediate reviews of all the offenders in the program to developing less-restrictive alternatives, like halfway houses or group homes, for offenders who are no longer considered a danger to society. He has also appointed former Supreme Court Chief Justice Eric Magnuson as a special master to oversee the program. In states like Washington, where a judge ruled its program unconstitutional in the 1990s, the courts and a special master took over the program for more than a decade.

Dan Gustafson
Dan Gustafson

Gustafson suggested in court that the judge could fine lawmakers $1,000 a day per resident (there are now 720 total offenders locked up in the program) until they fix constitutional problems. “Nothing gets the attention of politicians … like money going out the door,” Gustafson said. 

Frank reiterated that he’s not interested in releasing sex offenders en masse from the program without putting in place transitional procedures for both the state and offenders. Only five people have ever been released from MSOP’s campuses in Moose Lake and St. Peter in its 20-year history, all under intensive supervision.

But ordering the release of offenders is not an unprecedented move, he added. Two years ago a federal court in California ordered the release of nearly 10,000 prison inmates after the state ignored the court’s repeated calls to solve severe prison overcrowding. 

“It’s in the air here,” Frank said. 

Comments (2)

  1. Submitted by Michael Friedman on 10/01/2015 - 11:50 am.


    I can understand that victims have experienced substantial trauma, and that the release of the guilty party creates substantial stress or fear, irrespective of whether that release is from the MSOP or a prison.

    But given that detention at the MSOP is only constitutional if it serves a necessary psychiatric treatment purpose, and victims have no basis to have insights into the effectiveness of such treatments or the value of further therapies, the very fact they are sending letters to the Judge will, paradoxically, only reinforce the constitutional correctness for the decision they are writing to oppose.

  2. Submitted by Paul Kruger on 10/01/2015 - 03:35 pm.

    About time.

    This is long past due. The notion of a “free” nation able to lock up people based on an assumption they may commit a future crime should be very scary to everyone. Nothing in this notion would provide a legal limit to who could be locked up for “treatment” if this is allowed to stand against a population no one wants to advocate for. Politicians (and dictators) always test such policies on the weakest segments of society hoping no one notices until it is too late.

    Hitler did this with the Jews, locking them up, even murdering them by declaring being jewish a crime. No one would speak up for them. It is not a matter of your being sympathetic to a former sex offender who already served his/her time in jail. It is a matter of standing up for those who are being used by politicians to test their power over all of us.

    Who will be next? DIU drivers? Bad check writers? Who set’s the limit once this is considered okay?

    We know politicians are famous for causing all kinds of trouble for citizens but how often will the admit their errors and fix something they broke? Never.

    I urge the judge to stand his ground. There is zero evidence these programs work and since the constitutional basis for this is treatment, it follows that if there is no hope and no treatment it is no longer constitutional.

    We need to remember the Constitution is there to protect us all, not just a small group we all love to hate.

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