Federal judge orders prompt review of sex offenders

Minnesota must promptly evaluate hundreds of sex offenders who are detained in its controversial state treatment program and release those who no longer pose a threat to public safety, a federal judge ruled Thursday.

In a long-awaited decision, U.S. District Judge Donovan Frank gave the state until the end of 2017 to conduct independent risk evaluations of all 720 offenders now confined in the Minnesota Sex Offender Program (MSOP).

The state must then prepare to release offenders who no longer require confinement and ensure that less-restrictive treatment facilities are available in the community, the judge said in a ruling that flashed with impatience.

"At multiple stages … [the state's] actions and inactions have led to the continued operation of an unconstitutional scheme that unjustifiably detains hundreds of … individuals," Frank wrote.

The ruling sets the stage for a prolonged showdown between Frank and the Dayton administration, which is already pushing back against his demands. Just hours after the ruling, attorneys for the state filed a legal motion to stay, or suspend, Frank's ruling. If the stay is granted, evaluations ordered by the judge could be delayed by 18 months or more, attorneys said.

At a news conference late Thursday, Gov. Mark Dayton made it clear the state would proceed with certain incremental reforms, but on its own timetable.

"I will not take any actions that would compromise, to the slightest degree, the safety of the people of Minnesota," Dayton said. "To release people before we've gone through these careful evaluation[s] … I think is extremely inappropriate and highly offensive."

Though certain to trigger more legal wrangling, Frank's ruling marks a pivotal point in a four-year legal battle over the civil rights of rapists, pedophiles and other offenders confined indefinitely at secure treatment centers in Moose Lake and St. Peter after they have completed their prison terms.

For the first time, they may be put on a clear path to release, and the federal courts will hold Minnesota to strict deadlines. Many of the changes sought by Frank had already been proposed by a state task force, the state Legislative Auditor and other specialists who have reviewed the program.

In Thursday's ruling, Frank indicated he is fed up with legislative and bureaucratic inertia during four years of litigation, and suggested he might resort to "a more drastic solution," including the immediate release of offenders, if the state fails to comply with his order.

During a six-week federal trial this summer, MSOP administrators made the surprising admission that they may be detaining untold numbers of offenders who no longer meet the statutory criteria for confinement. They said that reflected insufficient staff and money to perform regular evaluations. The lack of regular risk assessments provided a pivotal basis for Frank's determination in June that the MSOP violates detainees' due process rights under the U.S. Constitution.

Experts on sexual deviancy who have worked with offenders at the MSOP estimate that as many as 25 percent to 35 percent no longer pose a sufficient risk to the public to justify their confinement and likely would end up being released if their cases were actually evaluated by independent experts.

In his ruling, Frank identified three subgroups of offenders who deserve expedited evaluations: offenders who are elderly, people with substantial intellectual and physical disabilities, and adults confined for acts they committed as juveniles. Together, these groups account for 250 to 300 of the offenders held at the MSOP, attorneys familiar with the program estimate.

Though Frank did not demand their immediate release, he gave the state just 30 days to develop a plan for evaluating detainees who fall into these three groups. He also gave the state until April 2016 to complete independent evaluations of these groups, and until the end of 2017 to review all offenders at Moose Lake and St. Peter.

"Those are the populations that an independent expert would most likely say, 'They don't belong behind razor wire,' " said Dan Gustafson, the lead attorney representing a class of sex offenders who sued the state.

But state officials insist Frank's timetables are unrealistic. Human Services Commissioner Lucinda Jesson said her agency would need more money from the Legislature to perform all the evaluations being sought by the judge, which cost about $10,000 each. Even if the state did have the funds, it does not have enough secure community settings to receive large numbers of offenders, state officials said.

In addition, any move to release offenders is likely to face fierce local opposition. Just Wednesday, the Brooklyn Center City Council passed a 120-day moratorium limiting where high-risk offenders can live. More than 20 other communities have passed similar ordinances in recent years.

Dayton said he is willing to work with the special master overseeing the MSOP case, former Minnesota Supreme Court Chief Justice Eric Magnuson, to develop a "feasible and responsible timeline" for reforms. At the same time, Dayton made it clear that he saw it as his personal responsibility to move cautiously with individuals who might reoffend.

"How do you tell a 5-year-old child that she'll never see her mother again because someone who committed previous crimes was released?" he said. "How do you go to a family and say, 'We intended well.' "

Founded 20 years ago, the MSOP has long been criticized for detaining too many people for too long. Minnesota confines more offenders per capita, and has the lowest release rate, among the 20 states that civilly commit sex offenders. The MSOP population has swelled in recent years, in part because the state has failed to develop less-restrictive treatment alternatives in the community. Each offender held at the MSOP costs the state about $120,000 a year.

"The days of arguing about whether this program is constitutional are officially over," said Eric Janus, a professor at William Mitchell College of Law in St. Paul who wrote a book about sexual predator laws. "That's been established. Now it's time to act."

chris.serres@startribune.com 612-673-4308

patrick.coolican@startribune.com 651-925-5042