State scrambles to fix sex offender program
by Paul Demko
Published: August 28,2013
Time posted: 3:50 pm
With legal settlement talks at an impasse, DHS looks to administrative reforms
A class-action lawsuit questioning the constitutionality of Minnesota’s troubled sex offender program has reached an impasse. After more than 60 hours of settlement talks over the last 16 months, an agreement has proven elusive.
“The settlement talks have stalled and now the court is going to move the litigation along,” said Dan Gustafson, the attorney appointed to represent the nearly 700 individuals involuntarily detained at prison-like facilities in Moose Lake and St. Peter.
Last week Gustafson’s firm filed a series of motions in U.S. District Court seeking to increase pressure on the state. Among the requests:
• An order declaring that the statute authorizing the civil commitment program is unconstitutional. In particular, the plaintiffs argue that the standard for committing someone to the Minnesota Sex Offender Program (MSOP) is “much less stringent” than the standard for release.
• An order requiring the state to immediately create “less restrictive alternatives” to the Moose Lake and St. Peter facilities. In addition, the attorneys are seeking a status review of every single client to determine whether they are being held in the appropriate setting and receiving suitable treatment.
• Appointment of a “special master” to oversee the program. This would essentially place the program in federal receivership. The plaintiffs want the special master to remain in place until the constitutional flaws of the MSOP have been resolved.
A hearing on all of these motions before U.S. District Judge Donovan Frank is scheduled for November 15.
There is precedent elsewhere for appointing a special master to oversee the civil commitment program. In 1994, a jury determined that Washington’s civil commitment program failed to provide constitutionally adequate treatment. That same year a special master was appointed to monitor the state’s progress. Ultimately the program remained under federal scrutiny for 13 years, until it was deemed to have fixed the constitutional flaws of the program.
Eric Janus, dean of the William Mitchell College of Law and an expert in civil commitment proceedings, points out that Washington’s program had only recently been created at the time of the lawsuit and therefore had a much smaller number of clients than Minnesota currently has. “I just think that the changes and consequences are much bigger because of that in Minnesota than they were in Washington,” Janus said.
Only two provisional discharges
The lawsuit was originally filed pro se by 14 MSOP enrollees nearly three years ago. Judge Frank deemed the case to have sufficient merit to be referred to the Pro Se Project so that the clients could get competent legal representation. In July of last year, it was certified as a class-action lawsuit, meaning the outcome could affect all individuals enrolled in the MSOP.
The plaintiffs argue that the conditions of confinement are unconstitutional. Specifically they allege that the treatment program is understaffed and insufficient to allow for advancement on a reasonable timetable. In addition, they argue that clients are treated like prisoners, with routine invasive searches and strict limitations on movement within the facilities.
Over the last two decades, only two individuals have been granted provisional discharge from the program. One of them violated the terms of release, was sent back to Moose Lake, and eventually died at the facility.
Earlier this month, it was disclosed that two additional clients have been recommended for provisional discharge by a special review board established by the Minnesota Department of Human Services. Those decisions must ultimately be cleared by a state Supreme Court appeals panel. If the two men are ultimately discharged, they would continue to be subject to GPS monitoring, mandatory sex offender treatment, drug and alcohol testing and other behavioral restrictions.
The lack of success in rehabilitating and releasing sex offenders has resulted in a dramatic increase in the size of the program in recent years. Over the last decade, the number of MSOP enrollees has more than tripled. Minnesota has the highest per-capita population of civilly committed sex offenders in the country. As first reported by Capitol Report last year, that population includes more than 50 individuals who have never been convicted of a crime as an adult.
“In a genuine system of civil commitment, you [reach an] equilibrium at some point, as discharges begin to approximate new admissions. But we haven’t seen that, of course, in Minnesota,” Janus said. “That’s why we’ve had this huge buildup.”
Last year, the federal court ordered DHS to create a task force to recommend changes to the beleaguered program. That 22-member panel, chaired by former Minnesota Supreme Court Chief Justice Eric Magnuson, has been meeting since November. It provided an initial set of recommendations for changes to the current civil commitment system in December.
Legislation making changes to the civil commitment system was considered this year in the House and Senate. Most notably the bills would have set up a bifurcated intake system for civil commitment candidates. An initial hearing would determine whether the person meets the threshold to be detained as a Sexually Dangerous Person or Sexual Psychopathic Personality. If they are deemed to meet that qualification, a second hearing would then be held to determine the appropriate venue where the person should undergo treatment.
The legislation passed the Senate with bipartisan support. But it got caught up in partisan bickering in the House. Republicans refused to offer up any support for the politically volatile bill. DFLers tabled it rather than risk a vote that could result in campaign literature tarring them as soft on sex offenders next election season.
DHS acts on ‘less restrictive alternatives’
But that doesn’t mean significant changes aren’t underway. Earlier this year, DHS issued a “request for information” about existing facilities that could serve as less restrictive sites for housing sex offenders. That garnered 23 responses. For example, Alpha Human Services, a nonprofit group that has provided sex offender treatment for four decades, indicated that it could provide three residential slots for individuals who would otherwise face civil commitment. In addition, the group offered to provide day treatment for two to five clients, who would be provided housing by another nonprofit group.
DHS has now followed up with a request for proposals. Those applications are due Sept. 12; DHS expects to enter into contracts by the end of the year.
These less restrictive alternatives would provide options for individuals currently enrolled in the MSOP who have made progress in treatment. It would also provide judges and prosecutors with options beyond detaining individuals at prison-like facilities for potentially the rest of their lives.
Deputy DHS Commissioner Anne Barry says it remains to be seen whether local officials will take advantage of those options once they are in place. “It’s an unanswered question,” Barry said. “We think it will never be answered if you don’t have alternatives.”
Gustafson doesn’t think DHS is moving fast enough to create less restrictive alternatives. “It’s our view that the law requires that,” he said. “They are taking those steps. Now we are saying you need to do this faster.”
DHS has also increased the number of individuals serving on the special review board to make recommendations on whether clients should be provisionally discharged. The number of slots has been increased from 13 to 19 (although one slot is currently vacant). Previously such reviews have been mired in months-long delays.
“We’ve done everything we can to speed up that process,” Barry said. “The review shouldn’t be what holds up the final decision and final placement.”
The sex offender civil commitment task force is also moving ahead with its work. At a meeting earlier this month, Magnuson charged members with submitting further recommendations for legislative changes ahead of the next gathering.
Some members of the task force expressed the sentiment that they shouldn’t be constrained by what’s politically feasible in coming up with recommendations. “We’re the last chance to get this right and not have to worry about politics,” said Fred Friedman, chief public defender for the Sixth Judicial District.
One idea that was floated by Magnuson would surely prove controversial: capping the number of years someone can be involuntarily enrolled in the MSOP.
Janus, who also serves on the task force, questions whether scrapping the entire system should be considered. “One of the issues that the task force has not really addressed is whether this law that we have has outlived its legitimacy,” Janus said. “We’ve had 20 years to get it right. We’ve had 20 years to fix the criminal system. Maybe some of the justification for having a civil commitment system has disappeared.”
While settlement talks in the lawsuit have stalled, both sides indicate that there’s still a chance they could be resurrected at some point. They differ, however, on the prospects for that happening.
“For right now I’m not optimistic that we’re going to start talking settlement seriously again,” Gustafson said.
Barry offers a more optimistic gloss. “We’ve been in settlement discussions for a long time,” she said. “We’re still prepared to talk.”