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Is Dayton’s evolving attitude toward the Minnesota Sex Offender Program personal — or political?

The governor and his administration have always been in a tough spot with MSOP. Yet as the legal fight has dragged on, Dayton’s tone regarding the controversial program has changed. 

Gov. Mark Dayton: “How do you tell a 5-year old-child that you are never going to see your mother again because somebody who committed previous crimes was released?”
MinnPost photo by Bill Kelley

It was a cool Wednesday afternoon in November of 2013, and Gov. Mark Dayton was upset.

The Minnesota Sex Offender Program, which his administration oversees, was in the midst of a legal battle. MSOP is responsible for locking up more than 700 sex offenders for treatment after their prison sentences under the state’s involuntary commitment laws, but it had rarely let anyone out, and the state was facing a class-action lawsuit questioning whether or not the program was even constitutional.

Dayton was trying to tackle some of the problems that had led to the suit; his administration arranged for the transfer of a handful of offenders from inside MSOP’s high-security facilities into a less-restrictive environment in Cambridge, Minnesota. And now he was under fire for the move, with former Republican House Speaker Kurt Zellers, who was running for governor at the time, accusing Dayton of endangering the public.

Dayton called a press conference to announce that he had halted the transfers. He had tried to balance public safety and constitutional concerns, he said, but the issue had become a “political circus.” It was time for state legislators to do something about the sex offender program.

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Almost exactly two years later, after lawmakers repeatedly refused to make any changes to MSOP, U.S. District Judge Donovan Frank ruled that the program was unconstitutional. In late October, Frank issued an order calling on the state to ramp up its evaluation — and possible release — of every sex offender locked up in MSOP.

Once again, Dayton went before microphones to register his frustrations. But this time, his anger wasn’t directed at lawmakers or opposing politicians — it was focused on Frank and the order mandating the state change the way it operated MSOP.

He called the order “extremely inappropriate” and “highly offensive.” Some of the people in the program “committed horrible crimes, and they repeatedly committed horrible crimes,” he said. And though the state would move forward with evaluations, Dayton said, it would do so on its own timeline. It was his job is to protect the safety of Minnesotans, Dayton said, and he was prepared for a protracted legal battle in order to do so.

“You realize what happens when you read about, see, hear about every day from law enforcement and others who deal with these situations,” Dayton said. “How do you tell a 5-year old-child that you are never going to see your mother again because somebody who committed previous crimes was released?”

The governor and his administration have always been in a tough spot with MSOP; they’re charged with running the program that’s been caught between legislators’ refusal to take action and the court’s insistence that things must change. But as the legal fight has dragged on, Dayton’s tone toward MSOP has also changed, with his mounting frustration evident in language that’s increasingly emotionally charged. By the time he spoke last week, mentions of possible constitutional violations were scant; instead, the second-term governor focused decisively on his charge to keep Minnesotans safe. “I’m doing what I was elected to do,” he said. “Protect the safety of the people of Minnesota.”

Going on the defensive

The sex offender program has always been an emotional issue, but it’s been especially so since 2003, when college student Dru Sjodin was raped and murdered by a Minnesota sex offender who had been released from prison — and not sent to MSOP. Commitments to the program skyrocketed after Sjodin’s death, but eventually, questions began to emerge about whether some offenders were being sent to MSOP wrongfully.

Dayton was elected in 2010, and the next year, a federal class-action lawsuit was filed alleging the program violated the offenders’ constitutional rights. His administration didn’t initially take a hard line on the program. In fact, it was the first to try and tackle some of the criticisms of MSOP. It allowed some offenders — approved by a special review board and judicial panel — to move into less-restrictive settings outside of the MSOP campuses in Moose Lake and St. Peter.

In 2012, sex offender Clarence Opheim was moved out of MSOP and into a St. Paul halfway house under intense supervision, the first successful conditional release from the program. In 2013, Dayton and Department of Human Services Commissioner Lucinda Jesson arranged the transfer of six offenders to the Cambridge facility. And when the move became a political issue, Dayton decried the rhetoric about the program as inflammatory.

“The political partisanship made it clear that this was going to be an issue that will be seized upon and abused by some who don’t mind scaring the people of Minnesota for their own advantage,” he said at the time. “And we just can’t proceed in that environment.”

But legislative attempts to reform the program continued to fail. In both 2014 and 2015, neither Republicans or Democrats in the state House were willing push a package of reforms without bipartisan votes for fear of it turning into attacks on the campaign trail. In his January 2015 budget proposal, Dayton called for $6.7 million funding to increase evaluations of offenders locked up at MSOP, but legislators did not include the funding in their final budget.

The program was ruled unconstitutional in June, and by August, the governor renewed his call for funding. He asked for $7 million per year for biennial evaluations and another $10 to $15 million to construct and operate less-restrictive facilities when the legislative session started in March.

But Dayton also moved into a more defensive mode, promising to appeal the unconstitutional ruling as soon as the state was able.

Frank’s October order signaled the judge was tired of waiting for lawmakers to act. He established clear benchmarks for the state to evaluate offenders locked up in the program, starting with the elderly, mentally and physically disabled and those who only have juvenile offenses on their record. He wants all offenders evaluated by 2017, and if any are found to not meet the standard for civil commitment, the state must discharge or move the offenders into less restrictive settings.

Dayton’s tone conspicuously changed soon after. While he called for the state to perform more evaluations, he also said the judge was moving too fast, and the state didn’t have enough funding to perform them. The state also didn’t have enough places to house 50 or more offenders if they were released. What’s more, Dayton questioned the validity of the evaluations themselves.

“If you read these professional evaluations, they couch their conclusions in terms of percentages, the percent that this person is likely to reoffend in the next five years is X percent, in the next 10 years is X percent,” he said. “There wouldn’t be anybody in this room or in the state who would want to look and see those percentages and say they are willing to trust their wives or their daughters or their children to people who are making evaluations and projections on that kind of a process.”

Dayton’s administration has also appealed Frank’s ruling to the Eighth Circuit Court of Appeals, and Dayton said he hopes the appeals court will pause Frank’s order until there’s a final ruling in the case.

Political or personal?

Some observers think Dayton’s shifting attitude about the case is political. “I think that if you compare some of the comments he made a year ago, this seems very different,” said said Eric Janus, a professor at the Mitchell Hamline School of Law who has studied the state’s sex offender laws. “It seems much more verging on exaggeration, kind of scare-tactics and putting an emotional and political frame around this rather than the kind of cool-headed systemic thinking that is needed to develop the best kind of program for the state. The state seems to have gone into defensive mode here. It’s hard not to understand this as a political response. Unfortunately, I think the more the state digs in the higher risk they are taking that they could lose control of the judge.”

Others think the shift may be more simple than that. House Republicans argue the program is constitutional and support Dayton in his effort to appeal the ruling. Rep. Nick Zerwas, R-Elk River, said he’s noticed a difference in the governor’s tone, but that Dayton often changes his mind on issues. “He started by saying admonishing the program and saying major changes needed to be made, to last week, when he was one of the program’s biggest defenders saying everything is great,” Zerwas said.

Dayton admits he’s changed too, but credits it to his experience as governor and reading some of the case files on offenders locked up in the program. Some of those files detail offenders who repeatedly committed sex crimes and showed little remorse for their actions, he said.

“How do you go to somebody — a family member — and say, ‘We intended well, but somebody on some federal bench said this was something we should do. And we thought it was being enforced upon us too rapidly, and we complied with it and so now this kind of catastrophe occurred,’” Dayton said. “I would never want to put a Minnesota family in that situation. It’s my responsibility, to the extent humanly possible, to make sure that never happens.”