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The practice of civilly committing dangerous sex offenders has existed in various iterations for decades. But the modern version of the Minnesota Sex Offender Program were shaped mainly by political exigencies.

Constitutional challenge to MSOP moves through courts

The practice of civilly committing dangerous sex offenders has existed in various iterations for decades. But the modern version of the Minnesota Sex Offender Program — and the legal and financial burdens the program poses for the state — were shaped mainly by political exigencies in the wake of the grisly murder of 22-year-old college student Dru Sjodin by a paroled sex offender, Alfonso Rodriguez Jr., in November 2003.

Following Rodriguez’s arrest, then-Gov. Tim Pawlenty issued an executive order directing that no one confined to MSOP could be released unless ordered by the courts, in essence daring judges to roll the dice on offenders with well-documented histories of egregious sexual misconduct.

In addition, the Minnesota Department of Corrections changed its policy on Level 3 sex offenders like Rodriguez to ensure that all such individuals would be referred to county attorneys for potential civil commitment when their prison release dates approached. Prior to that change, county attorneys typically relied on the assessment of corrections officials to determine which Level 3 offenders should be referred for civil commitment.

The effect was immediate and dramatic: In the month of December 2003 alone, 235 individuals were referred for possible commitment to MSOP. In the nine years prior to Sjodin’s murder, a total of 237 individuals had been referred to prosecutors for possible civil commitment. In the nine years that followed, the number topped 1,300.

Not all of those cases ended in commitment to the MSOP. But the number of individuals sent there skyrocketed as well. In 2002 there were 181 men confined through the sex offender program. Currently the population is approaching 700, and that number is projected to double again in the next decade. (See accompanying charts.)

“All these [draconian sex offender] laws that have been created, if you look at the history, have occurred because of a horrendous crime,” said Robert Longo, a licensed clinical counselor who has worked extensively with juvenile sex offenders. “If you look at all the sex crimes that occur in the world, those horrific crimes account for less than one half of 1 percent of all sex crimes. But we make laws based on the horrific one, because those are the ones that make the news …
“It’s not unique to Minnesota; it’s what fashions our laws. We’re making all these horrific laws based on crimes that are very, very rare. But people don’t want to hear that in the moment.”

Legal observers have warned for years that the program’s failure to rehabilitate and release clients would eventually lead to serious questions about its constitutionality and imperil its existence. But until recently, there’s been little sign that the courts were willing to intervene.

In June of last year, Joseph Thompson, a 57-year-old civilly committed sex offender, represented himself in a U.S. District Court case alleging that the conditions of his confinement are unconstitutional. Specifically, he argued that restrictions on personal property, invasive body searches and the use of restraining devices are much more akin to a prison setting than the therapeutic environment that the MSOP is supposed to provide. U.S. Magistrate Judge Jeffrey Keyes found sufficient merit in Thompson’s argument to order that the law firm of Gustafson Gluek be appointed to argue the case on his behalf.

In July of this year, U.S. District Judge Donovan Frank certified the case, along with a similar legal complaint, as a class-action lawsuit, meaning its outcome could have ramifications for every individual confined to the MSOP. Then, in August, U.S Magistrate Judge Arthur Boylan ordered that Minnesota create a task force with up to 15 members to propose changes to the state’s sex offender policies. He directed the panel to report back by early December with “less-restrictive alternatives to placement in secure treatment facilities.” The task force is expected to include current or former legislators, prosecutors, law enforcement officers, treatment professionals and attorneys who have represented sex offenders facing civil commitment, among others.

That process is just now getting underway, with a first meeting scheduled for Oct. 11. “The first thing we’re going to look at is how somebody is committed to the program,” said Anne Barry, deputy commissioner of the Department of Human Services, who is overseeing the task force. “Looking for alternatives, less restrictive alternatives to commitment, will all be part of our first recommendation. It’s our plan then to put that together and get it ready for the upcoming legislative session.”
Barry believes the lawsuit and the task force could be the impetus for significant changes, but she notes that it will be up to the Legislature to take action. “We don’t hold the key to changes here; the Legislature does,” Barry said. “We will do everything we can to communicate the seriousness of the litigation. The order from the judge that creates the task force gives us a lot of emphasis, gives us a lot of opportunity, to say not only is this serious but there can be consequences to any lack of action on the part of the Legislature.”

William Mitchell College of Law Dean Eric Janus, an expert on the civil commitment of sex offenders, agrees that the legal action provides the most significant potential opening for serious discussion about changes to the MSOP in the two decades since it began operations. “I think it could provide an impetus and also political cover for the elected officials and policy makers to do the right thing,” he said.

The class-action lawsuit has provided many MSOP enrollees the first sign of tangible hope that their situation might materially change in the near future. “It’s the first acknowledgment by the most authoritative body to say we’re going to look into this,” said Lincoln Brown, who has been enrolled in the MSOP for 17 years. “I still have that hope that I’m going to get out of this. But what that looks like is kind of scary to me sometimes.”


(Click to enlarge charts)

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