The fundamental flaws of the Minnesota Sex Offender Program have long been known. Despite operating for nearly two decades and spending hundreds of millions of taxpayer dollars, the program has never successfully rehabilitated and released a civilly committed sex offender.
Consequently, the number of individuals involuntarily enrolled in the program has skyrocketed over the last decade. In 2003 there were just 199 civilly committed sex offenders in Minnesota. As of Jan, 1, that number had ballooned to 656 – a more than 300 percent increase. The population of the program is expected to double again in the next decade. The timing of that dramatic growth is not coincidental. In November 2003, 22-year-old Dru Sjodin was abducted and murdered by a sex offender who had been released from a Minnesota prison earlier that year.
In the wake of that high-profile crime, then-Gov. Tim Pawlenty signed an executive order stating that no civilly committed sex offender could be released unless ordered to do so by the courts. The result? Minnesota now has by far the highest per capita sex offender civil commitment rate in the country.
That fact alone might not elicit much interest, since violent sex offenders do not rank very high on the list of folks whose well-being society worries about. But the escalating costs associated with detaining so many individuals for an indeterminate period of time have attracted increased scrutiny in recent years. It costs $120,000 annually to house and treat civilly committed sex offenders. That is roughly four times the cost of keeping them locked up in prison. Overall costs for the MSOP peaked at $75 million in 2008 and have since retreated slightly, primarily because of staffing reductions.
That does not even take into account capital costs. Last year Pawlenty requested $89 million in bonding dollars to expand the MSOP’s Moose Lake facility, but the Legislature appropriated only about half that amount. Sen. Keith Langseth, DFL-Glyndon, referred to the facility as “Pawlenty’s pervert palace.” The MSOP anticipates running out of beds in 2013.
But a damning report from the Office of the Legislative Auditor released earlier this month shines new light on why the civil commitment program has failed to deliver on its mission of rehabilitating sex offenders. “We finally have official acknowledgement that the program is substandard coming from an authoritative arm of the state government,” said Eric Janus, dean of the William Mitchell College of Law and a longtime critic of the MSOP. “I think it’s a picture of a program that is broken at the most fundamental levels.”
Arguably the most revealing details in the report concern personnel problems in the MSOP and their likely detrimental effect on treatment. The program has had three executive directors and four executive clinical directors over the past seven years. For a 14-month period in 2007-08, the top clinical post was vacant. Staffing issues are particularly pronounced at the Moose Lake facility. As of January, half of the eight supervisory clinical positions were vacant, according to the auditor’s report. That’s actually an improvement over the recent past, when as few as two of the positions were filled. As of November, 17 of 68 nonsupervisory clinical positions were vacant. All but one of the unfilled posts was at the Moose Lake operation. By January the number of vacancies there had dropped to five.
It is inherently difficult to find qualified sex therapists who want to devote their professional lives to working with violent offenders in a remote part of Minnesota, the auditor’s report notes. But it also points out that “clinicians may not want to work for MSOP because of its reputation for program instability and not releasing any clients.”
That lack of stability and staffing appears to have limited the opportunities for patients to receive effective, sustained treatment. Clients participating in treatment at Moose Lake, for instance, were receiving six hours of group therapy a week in 2010, according to the auditor’s report. By contrast, inmates participating in sex offender programs run by the Department of Corrections receive an average of 12 hours of treatment each week. And in-patient clients at Alpha Human Services, the state’s only private, residential sex offender treatment program, receive 20.5 hours of group therapy per week. The void left by this paucity of treatment is sometimes filled in rather dubious ways by MSOP residents. One client participating in treatment reported watching 77 hours of television in one week.
The auditor’s report also noted that some security measures used by MSOP staff members could be hindering advances in treatment, particularly at Moose Lake. For instance, because of concerns about inappropriate touching, clients are no longer allowed to shake hands with staff members or each other. Investigators with the auditor’s office were told that such policies create an “us versus them” attitude between clients and staff that is counterproductive.
There is no doubt that the MSOP is dealing with an exceedingly difficult population, many of whom have no hope of ever advancing through treatment. A random survey of clients by MSOP staff in 2010 found that the median number of victims per resident was 11.5 (although many of these incidents were never criminally prosecuted). Twenty percent of clients refuse to participate in treatment. In addition, about one-sixth of those civilly committed are believed to have IQs below 80 and cannot participate in standard group therapy.
But if the program cannot eventually establish some record of success in providing effective treatment to sex offenders, the courts could intervene. That is because such civil commitment programs were deemed constitutionally sound by the courts only because their primary purpose is therapeutic rather than punitive. “The courts accepted those promises and, on the basis of those promises, upheld the constitutionality,” Janus said. “What we know now is that there is a 15- to 20-year pattern of inadequate executive implementation that belies the veracity of the promises that were made by the state.”
If the courts do ultimately intervene, there are two likely courses that could play out. A judge could demand that changes be made to the program and monitor the results. That is how it worked in Washington, with the state’s civil commitment program operating in receivership for 13 years. The other possibility is that a judge could simply determine that the state statute is unconstitutional. “If they strike the law down, then of course the whole thing goes away,” Janus said.
But there is little evidence that the judiciary is anxious to strike a legal blow in favor of the state’s worst sex offenders. Olmsted County District Court Judge Kevin Lund has repeatedly raised questions about the constitutionality of the MSOP given its lack of therapeutic success in recent years. “These facilities are simply detention facilities,” the judge said in 2007. But his is a lonely stance. A case from Lund’s courtroom challenging the constitutionality of the civil commitment program went before the Minnesota Court of Appeals in 2008, but was rejected.
The Minnesota chapter of the American Civil Liberties Union is also litigating a civil case on behalf of six MSOP clients challenging confinement conditions at the Moose Lake facility. Basically the lawsuit argues that practices like strip searches and transporting clients in shackles are unnecessarily punitive. “The more punitive you become, the less of a therapeutic environment you have,” said Teresa Nelson, legal counsel for the ACLU, “and really you’re betraying the whole legitimate basis of the program.”
But last month a federal magistrate judge recommended that summary judgment be granted in favor of the Department of Human Services and the Department of Corrections and that the case be dismissed. The ACLU is appealing that determination to U.S. District Court Judge Donovan Frank.
The auditor’s report offers 16 recommendations for how the DHS can improve the civil commitment program in hopes of avoiding judicial intervention. Even before the report was released, the agency had begun to adopt some of the changes suggested. For instance, the MSOP is under a directive to provide more hours of therapy for participants in the program. Quarterly reports now must be filed with the DHS showing how many hours of treatment are being provided. In addition, a psychiatrist has been hired to ensure that patients at the facility have access to psychiatric care.
The Legislature is also taking steps to implement changes recommended in the auditor’s report. Rep. Tony Cornish, chairman of the Public Safety and Crime Prevention Policy and Finance Committee, introduced legislation this month that would implement indeterminate sentences for some sex offenders. It would apply to individuals who have a pattern of harmful sexual conduct, including at least one conviction for felony criminal sexual conduct. Under Cornish’s proposal, such individuals would receive a sentence of up to 60 years, but the commissioner of corrections would have the authority to release them sooner.
“If you go into Joe’s Bar back home and you ask people what you should do with [violent] sex offenders, you’ll end up probably with a range anywhere from life without parole to castration to the death penalty,” said Cornish, R-Good Thunder, at a hearing on the bill on Wednesday. “I don’t say that to sensationalize, but overwhelmingly the public expects us to do something drastic with the people we’re talking about in these categories of sex offenses.”
The bill passed out of committee on a unanimous voice vote. If implemented, indeterminate sentencing would almost certainly result in much longer prison sentences and consequently fewer referrals for commitment to the MSOP. But given that it would not apply to all of the sex offenders currently serving prison sentences, the potential benefits would lie at some point well into the future.
“We’re facing a huge decision point right now in that we’re going to have to stick one heck of a lot of money into the sex offender program,” Cornish said at the hearing. “It doesn’t solve it by any means, and there are still some questions to be answered.”