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

MinnPost photo by Bill Kelley
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?”

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.

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.”

Comments (17)

  1. Submitted by Robert Ryan on 11/09/2015 - 11:31 am.

    The Governor is Wrong

    The Governor not only has an obligation to protect Minnesotans, but also to uphold the constitutions of the US and Minnesota. It’s not easy to speak in favor of repairing the program if it means releasing some people.

    When I read about some of the people locked up, there are stories about kids who committed offenses when they were 13 years old and have been locked up in detention and the MSOP for 20 years. Others have been locked up for many years and are now old men who are no longer a threat if released into the right sort of situation. I don’t believe that of the 700 plus people locked up in the MSOP, there aren’t at least some who are no longer a threat. The problem is, the program is a smokescreen for indefinite imprisonment. According to all the news reports, little attempt has been made to honestly treat and evaluate people, and Minnesota’s program is out of step with almost every other state.

    I believe it’s time for our political leaders to show some courage and develop a new approach that both protects Minnesotans and does not violate our constitutional law.

  2. Submitted by joe smith on 11/09/2015 - 11:57 am.

    Let criminologists, psychiatrists and local law enforcement make the decision to let out or keep locked up sex offenders. As many here have stated the safety of the community should come way before a convicted sex offender. When you make the decision, yes it is your decision to rape some poor child or woman, you give up some of your rights. When you do it repeatedly you should give up all of your rights and stay locked up!!

  3. Submitted by Kevin McDonald on 11/09/2015 - 12:18 pm.

    Strib’s D.j. Tice Nails It

    Sometimes the truth must be said, and D.j. Tice of the Star Tribune did so in his recent opinion piece:

    D.j. rightly takes the Governor to task by describing Dayton’s approach to MSOP as “…the kind of counterfeit courage that has always led lynch mobs and witch hunts — fanning passions rather than doing a constitutional leader’s duty to remind citizens that devotion to the rule of law for all lies at the core of our national ideals.”

    Minnesotans are encouraged to carefully read Tice’s piece. As has oft been said,”the measure of a civilization is how it treats its weakest members.”

    As harsh as D.j.’s opinion piece is, as the old adage goes, while the truth hurts, it must be said.

    What will the future hold? More counterfeit courage or leadership.Thankfully we still have leaders like Judge Frank.

  4. Submitted by Bill Kahn on 11/10/2015 - 09:47 am.

    Everything would be different if Tim Paulenty had let them have their big screen TVs.

    Seriously, if funding had or could be adequate for a program like this to function, the treatment of everyone in it could easily be justified, i.e., government on the cheap cannot work. Tell your neighbors to stop electing legislators who believe that less is more.

  5. Submitted by Ray Schoch on 11/09/2015 - 12:52 pm.

    Just an observation

    I don’t have any professional expertise in this field at all, and I’ve only been here a few years, but one of the reasons why this might be such a difficult area for Minnesotans is that Minnesotans strike me as fairly prudish about sexuality, and even more so in a criminal context. Locking people away who’ve been convicted adheres to the “out of sight, out of mind” principle, and for many in the general public, that’s a comfortable place for offenders to be.

    There are certainly sex-related crimes that richly deserve punishment, and foisting the perpetrators on an unsuspecting public fails the “good government” test on multiple levels. That said, because of that prudishness (not limited to Minnesota, by the way), lots of behavior that might go unnoticed in other parts of the world, and even in other parts of the country, ends up being classified as a “sex crime,” and the people involved have labels and legal restrictions to deal with for the rest of their lives because of some minor incident. I’m reminded of the current Colorado “scandal” regarding sexting between/among teens at Cañon City’s high school. There’s some talk of criminalizing those messages and images as sex crimes, and if that comes to pass, a 15-year-old could end up with the label “sex criminal,” and all that goes with it, for the rest of his/her life. That’s ludicrous.

    Some of the MSOP “residents” no doubt should not be released, but if, as a community, we’re going to say that any sort of sexual offense merits a lifetime of confinement, then we should be honest enough to admit it, eliminate the pretense of “treatment and release,” and change the law to state that. To do otherwise simply provides cover for the prudishness of some state legislators and other officials (not to mention those in the general public who are themselves uncomfortable with sexuality) in regard to behavior that might not even raise an eyebrow in other civilized societies.

  6. Submitted by Greg Kapphahn on 11/09/2015 - 01:21 pm.

    The Leaders of the State of Minnesota

    secular, religious, political,…

    ALL of them,…

    need to start finding ways to move away from a legal system which,…

    by the effective penalties imposed,…

    makes it clear to those inclined to commit such crimes,…

    that they’d be safer MURDERING a person they sexually assaulted,…

    than leaving that person alive,…

    because that dead person would be far less likely to successfully accuse them of sexual assault,…

    and the EFFECTIVE penalty for murder is LESS than for sex crimes.

    For my fellow citizens of Minnesota,…

    would you REALLY rather that your neighbor, your brother, your sister, your friend, your child be murdered,…

    than left the living victim of a sexual assault,…

    because that’s the CLEAR message our current system sends:

    that it’s better to be dead than to be the living victim of a sexual assault.

  7. Submitted by Bill Lindeke on 11/09/2015 - 01:53 pm.

    Politics trumping human decency

    It’s just not right to lock people away forever with no hope of release unless they’re sentenced to life in prison.

  8. Submitted by joe smith on 11/09/2015 - 02:12 pm.

    Kevin, you are correct when you say “the measure of a civilization is how it treats its weakest members”. The weakest members in our society are the women and children these sexual predators attack, lets protect them by keeping sexual predators where they belong, behind bars.

    • Submitted by Pat Berg since 2011 on 11/09/2015 - 02:44 pm.


      I know it’s just a bothersome little technicality, but before we start locking people up for life for sex crimes, perhaps we should just maybe go through the motions (and bother!) of passing a law which allows us to do so first . . . . . . .

      • Submitted by RB Holbrook on 11/09/2015 - 03:10 pm.

        What are you saying?!

        I am shocked! Your comment seems to say that we should be paying attention to things like due process, justice, or the Constitution! What kind of mushy liberal thinking is that?

        • Submitted by joe smith on 11/09/2015 - 05:33 pm.

          RB, you must mean like liberal cities enforce immigration laws? There is no such things as Sanctuary Cities in your world I guess. I would rather keep pedophiles and sexual predators behind bars to protect our children and women than protect law breaking illegal immigrants in select cities. I assume you agree being law and order and all.

          am sure you agree.

          • Submitted by Bill Kahn on 11/10/2015 - 09:34 am.

            Agree with what? Equating completely different areas of the law? That “law and order” ‘expressly’ means anarchy?

            Denying people their rights is not the same as local governments refusing to spend time and money to do the work of federal government, especially when doing so impedes their own work. It certainly is not the work of state government to keep people locked up with no legal basis.

            There is a word describing those who agree with folks like Joe Smith: Republican. (Actually, there are quite a few other words, but while accurate, they don’t serve arguments here.).

            I’d think Minnesota Republicans would want Dayton and the Legislature to fix this as if it is appealed, the higher courts could resolve things in a way that sends ‘their world’ reeling perhaps ending with a nearly unanimous Supreme Court decision.

            It really is past time to fix this MSOP mess. If our lawless Republicans and Democrats who can’t seem to master the law in order to enforce or create more of it will not do so, then perhaps we should dissolve this state and have folks here and there consider annexation to other states, maybe even Canada (Ontario or Manitoba?).

            • Submitted by joe smith on 11/10/2015 - 10:42 am.

              Bill, your reasoning for sanctuary cities is interesting, just too darn busy to enforce the law. I will check with my law enforcement buddies in St Paul, I’m sure they will get a chuckle out of your reasoning. Sanctuary Cities aside for a moment, protecting the public is the main purpose for keeping sexual predators behind bars. When somebody can come up with a cure for pedophilia then we can talk about letting out the convicted child abusers. When you molest or rape women and children your are denying them THEIR rights and therefore give up yours. That is unless the cops are too busy or out of money to enforce the law, then you become a sanctuary city I guess.

              • Submitted by Bill Kahn on 11/10/2015 - 04:28 pm.

                “Sanctuary Cities” are indefinable, but that is the attraction to folks like Joe. Every city approaches this problem dependent on their own demographics, but Joe, like the majority of vocal Republican folks on this subject, chooses a racist and xenophobic slant to explain it all in broad strokes to the folks with him on ‘his world’ to keep them happy in their natural state of violent histrionics.

                Your views on predatory sex offenders and their prospects, can certainly be considered in making laws that satisfy the conditions a state must in our democratic republic, but that is not what you, Dayton, and the rest now defying the U.S. Courts are advocating.

                You want to lock’em up and throw away the key? Fine. Write a constitutional law to do it and fund the programs adequately. Until you do, you and your law enforcement buddies make fascists of us all through the MSOP as it exists today.

          • Submitted by RB Holbrook on 11/10/2015 - 11:48 am.

            Agree with what?

            Transparent, yet laughable, attempts at deflection? Confusing the issues?: Injecting irrelevant arguments? Assuming something another person believes without any reason for doing so?

            Let me know, so I can address your concerns.

  9. Submitted by Michael Hess on 11/10/2015 - 06:38 am.

    Like so many other topics

    The Governor appears to prefer to substitute his personal opinion for the opinion of experts. Pre K, Walleye on Mille Lacs, MSOP, the pattern repeats.

  10. Submitted by Peter Spooner on 11/15/2015 - 09:19 am.


    The oath of office (below) seems to indicate that following constitutional laws are a primary job for our Governor and for state legislators. We should support them in the most difficult of their decisions.
    “I, (legal name) do solemnly swear that I will support the Constitution of the United States and the constitution of the state of Minnesota; and that I will faithfully discharge the duties of the office of (name of office) to the best of my judgment and ability, so help me God.”

    To live in a free society means accepting risks in exchange for freedom. If we manipulate laws to remove freedom from some, we are not a free society. If we tried to mitigate and legislate all risk we would all be locked up, and would be be any safer? No, because we’d be locked up with each other.

    The offending citizens have done their time.

    Ignoring the Constitution in order to keep them locked up is an attack on everyone’s freedom.

    Stand up, be big people, stop worrying about popular sentiment and fix MSOP.

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