Appeals court ruling on Minnesota’s sex offender program means uncertainty for offenders — and a new political reality for lawmakers

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Dan Gustafson was disappointed — but hardly surprised.

Gustafson had spent more than six years suing Minnesota’s sex offender treatment program for locking up hundreds of offenders — most of whom had already served sentences in state prisons — without successfully ever letting anyone out. Then, in 2015, he had a major victory: Federal Judge Donovan Frank declared the program to be unconstitutional, ruling that it had turned into permanent warehouse for sex offenders. Frank ordered the state to immediately make changes.

The state appealed the ruling, and on Jan. 3, a three-judge panel on the 8th Circuit Court of Appeals struck down Frank’s decision.

The state and proponents of the program celebrated the decision, saying it upheld a program that is necessary to keep the public safe from dangerous sex offenders. Gustafson and others pushing to change the way MSOP operates say Frank’s ruling never meant that dangerous pedophiles and rapists would roam free, but that it did give hope to less dangerous offenders in the program that they might one day get out. And its reversal now puts nearly 100 offenders readying for release in limbo.

It’s also created a new reality for Minnesota politicians, removing much of the impetus for lawmakers to make changes to the program, even if they wanted to. And with continued divided government and an upcoming governor’s race in Minnesota, those who have long advocated reforming MSOP fear that any political will to do something about the problematic program has disappeared completely. 

“Frank’s ruling gave the administration some political cover to make some reforms, and they are going to struggle to find that same cover now that it’s out of the federal courts,” said Eric Janus, a professor at Mitchell-Hamline School of Law who’s studied state sex offender laws. “It’s not really a partisan issue, what it is though is a ready tool for someone from any party to use against their opponents. There’s a fear that whoever sticks their neck out will get it chopped.” 

Case pushed changes to MSOP

The court case spearheaded by Gustafson put a spotlight on a program that sat still for two decades. The Minnesota Sex Offender Program (MSOP) opened its campus in Moose Lake in the mid-1990s as a high-security treatment program for sex offenders who were finishing up their prison sentence yet were still considered dangerous to the public or had “sexual psychopathic personalities.” Offenders were civilly committed to the program for treatment indefinitely — until experts decided it was safe to release them.

But even as the number of commitments grew — there are now around 700 offenders in the program — no one was ever released successfully. So in 2011, Gustafson filed a class action lawsuit on behalf of a group of offenders, alleging the program had become a warehouse instead of a treatment program, and violated the offenders’ constitutional rights.

MinnPost photo by Jana Freiband

Dan Gustafson

A year after the court case was filed, the state approved the second provisional release from the program: Clarence Opheim, a convicted child rapist in his 60s who had more than 30 victims (the first person released was ultimately sent back to the program for violating the terms of his release). Community members and politicians opposed the move, but Opheim was placed in a halfway house in St. Paul under intense supervision.

Then in June of 2015, Frank released his long-awaited decision on the case: He ruled the program was violating the constitutional rights of offenders and ordered the state’s top politicians to quickly come up with some suitable “remedies” to the problem. The state of Minnesota immediately appealed the decision to the U.S. 8th Circuit Court of Appeals, and no specific remedies were ever agreed to by lawmakers.

Even without legislative action, some things did start to change. MSOP released seven sex offenders on a provisional basis, all of whom are now living in the community under supervision. Six more offenders have been granted discharge but are awaiting placements in community homes. And one offender, Eric Terhaar, became the first person ever released unconditionally from the program, though Terhaar only gained his freedom after the state appealed his release. 

“When I started this case, no one had even been provisionally discharged from the program,” Gustafson said. “[Seven] doesn’t seem like a lot when you compare it to 700 offenders in the program, but when you compare it to zero releases, it does seem like a lot.”

In his ruling, Frank ordered the state to put a priority on reviewing the treatment of a particularly troubling class of MSOP clients: people with only juvenile offenses on their record; elderly offenders; and those suffering from cognitive disabilities. According to experts, those groups of individuals posed much less danger to the public and should be quickly reviewed for release. The Department of Human Services, which runs the program, said it has now reviewed all of those offenders. 

An uptick in evaluations and progression in treatment also means there are 89 clients in Community Preparation Services, the final phase of treatment at MSOP before release, according to DHS. 

Ruling ‘changes the whole dynamic’ in St. Paul

The federal Court of Appeals for the Eighth Circuit in St. Louis dropped its ruling on Frank’s decision on Jan. 3 — the same day Minnesota legislators convened and took the oath of office for the 2017 session. 

The panel’s judges sided with the state, arguing that Frank held the state to an overly high standard when determining whether the program was constitutional. Specifically, they said Frank failed to demonstrate that any of the state’s actions “were egregious, malicious, or sadistic as is necessary to meet the conscience-shocking standard.”

Human Services Commissioner Emily

Johnson Piper

DHS Commissioner Emily Johnson Piper was pleased with the ruling. She’s been involved in the case for years, first as Dayton’s general counsel and then as the lead defendant in the case when she became commissioner of DHS in December of 2015.

“It affirmed what I believe most people in the state see in the program: That it’s necessary for public safety and there is a purpose for this program and it’s a constitutional program,” she said. “It’s something that had gotten lost in the conversations around the program in the recent past. Every day in the state of Minnesota, people rely on this program’s continued existence, even without realizing it.” 

Johnson Piper said the state is going to move forward with plans the Dayton administration has put in place, including asking for additional state funding this session for the program. Specifically, Dayton is asking for $14.5 million in his bonding bill for the renovation and construction of 30 additional beds for MSOP clients in the final phases of treatment. He also wants $12 million to design and construct two community-based residential treatment facilities for the program. These buildings would serve as less restrictive alternatives to the program’s more highly secure facilities at MSOP’s Moose Lake and St. Peter campuses. When the governor’s full budget proposal is released, Johnson Piper said he’ll also ask for more funding for staffing and to help conduct regular evaluations of members in the program, a process that was heavily criticized in Frank’s ruling.

Those requests could be a tough sell to a new GOP-controlled Minnesota Legislature, which has its own projects it wants to fund this session. Not to mention that readying sex offenders for release from MSOP isn’t exactly popular with the public.

Complicating matters is the 2018 Minnesota governor’s race. MSOP was a volatile campaign issue during Dayton’s 2014 re-election campaign, after Republican candidates criticized him for approving the provisional release of Ophiem and other offenders.

“That changes this whole dynamic,” Republican Senate Judiciary and Public Safety and Finance Committee Chairman Warren Limmer said. “As long as a court says it’s constitutional, that means business-as-usual can continue.”

Some common ground? 

But Limmer thinks the Legislature has responsibility for administering MSOP and its cost to taxpayers. It costs three times as much to treat someone in MSOP than it does to keep them in prison, Limmer said. He also has questions about the treatment model that’s being used by DHS. 

“If there is a treatment program for sex offenses and no one is treated successfully in a 20-year period of time, either every single person is incurable in the system or the treatment model isn’t successful. I would hope to think that there are a few souls in the MSOP program who are redeemable,” Limmer said. “Those are the questions in the public interest, whether the program is found unconstitutional or not.”

State Sen. Warren Limmer

Limmer plans to sit down with Dayton administration officials to try and find some common ground. One area of agreement could be problems with intake into the program. Both parties are concerned about what will happen if there’s another case like that of Dru Sjodin, a college student who was raped and murdered in 2003 by a level-three sex offender who was released from prison and not committed to MSOP. Commitments to the program, which are handled by individual judges in all 87 counties, skyrocketed after the murder.

Commitments have slowed in recent years, as the class action suit got more attention. In 2010, there were 49 people civilly committed to the program by county judges across the state, according to DHS. That number dropped to only 17 commitments last year. 

But all it takes is one more case like Sjodin’s to cause another spike in commitments, Johnson Piper said. Limmer said he would support creating a special civil commitment court in Minnesota, instead of having judges across the state make the decision.

MSOP will ‘always’ be in court

The ruling doesn’t mean the matter is settled in the courts, either. Gustafson said it’s likely he’ll appeal the ruling to the U.S. Supreme Court. Just getting the nation’s highest court to take up the case is an uphill battle, but if it does, he thinks they have a good shot.

“You don’t want the state of affairs to depend on who’s in power,” Gustafson said. “That’s why you want to have constant checks on the executive branch. While I’m concerned this will be a setback, there are always going to be court cases related to this and MSOP, and the state courts can make changes. I’m ultimately optimistic that the right conclusion will be reached.” 

Mitchell-Hamline professor Eric Janus

The process for placing sex offenders in the community could also wind up in court. As more offenders have been provisionally discharged from MSOP, local communities across the state have responded by creating residency restrictions for where offenders can live. Many cities and townships have drawn 500 to 2,000-foot restrictions around locations like schools, playgrounds and day-care centers.

But under state law, only the state government can legally decide residency restrictions for sex offenders, and similar bans are being challenged or struck down in other states for being too restrictive of where sex offenders can live. It also creates an uneven distribution of sex offenders in less privileged urban areas, Johnson Piper said.

“North Minneapolis has the highest concentration of sex offenders in the state. That is unfair to that community,” she said. “They don’t have the political clout or the capital to be able to pass an onerous residency restriction and otherwise effectively advocate for themselves.” 

Republican legislators have introduced bills to give cover to communities who pass these restrictions, but the issue might wind up in court first, especially as it gets increasingly difficult find placement for offenders. Johnson Piper said six offenders have been ordered by the courts to be released from MSOP but they cannot find anywhere for them to go. 

“It’s really quite extraordinary that these towns and municipalities have the legal right to enact laws that obstruct state policy,” Janus said. “I do expect some litigation around that. I know some lawyers who are getting ready to file.”