Minnesota sex offender program is ruled unconstitutional

A federal judge ruled Wednesday that the Minnesota Sex Offender Program (MSOP) violates the U.S. Constitution by confining offenders indefinitely without giving them access to the courts and other protections of the criminal justice system.

In a scathing order, U.S. District Judge Donovan Frank said a program that was designed to treat offenders for their sexual disorders had instead become punitive in nature, wrongly confining untold numbers of people behind razor wire who could be treated in less-restrictive community settings, such as halfway houses.

The ruling sets the stage for what could be a long and bruising battle between the courts and state officials over reforming a system that has been widely criticized for locking up too many sex offenders for too long. Frank called on legislators and the state's executive leadership to "fashion suitable remedies" in time for an Aug. 10 hearing in his courtroom.

"The overwhelming evidence at trial established that Minnesota's civil commitment scheme is a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without [legal] safeguards," Frank wrote in his 76-page order.

Gov. Mark Dayton defended the program Wednesday, but legal scholars said his administration will probably have to adopt a series of monumental reforms to satisfy the federal judge — or face an imposed solution. These reforms likely will require the state to prove why individual offenders are locked up after they have already served their prison terms, and it could result in supervised community release for many of the 700 men now confined at high-security treatment centers in Moose Lake and St. Peter.

"The judge has tremendous power here," said Eric Magnuson, a former chief justice of the Minnesota Supreme Court who in 2013 chaired a state task force that recommended reforms to the program. "[Judge Frank] can basically say, 'I don't care if it's going to cost a lot of money and I don't care if it's going to be difficult. I want you to give [offenders] all hearings and … prove that they need to be there."

Added Magnuson: "He wields a broad sword, not a scalpel."

The ruling follows a six-week trial last winter in which a class of sex offenders sued the state, alleging that the MSOP violated their constitutional right to due process.

Frank's condemnation of the MSOP was sweeping; he called it an "institutional failure" with systemic flaws.

Those flaws include a lack of clear guidelines to show when offenders are progressing through treatment; an absence of periodic assessments to determine whether offenders are still dangerous enough to require confinement; a "cumbersome" discharge process plagued with bureaucratic delays, and a lack of less-restrictive community treatment options.

Since the program's inception in 1994, no offender has ever been unconditionally discharged, and only three have been provisionally discharged.

By contrast, Wisconsin has fully discharged 118 offenders and placed about 135 on supervised release since 1994. At an annual cost of $120,000 per detainee, the Minnesota civilly commits more sex offenders per capita than any other state.

Frank's ruling, however, does not mean that offenders will be released immediately into the community.

Both Dayton and Human Services Commissioner Lucinda Jesson issued statements Wednesday saying that they disagreed with the decision and that they would continue to defend the program's constitutionality, though they stopped short of saying they would appeal.

Even Frank appeared to favor a cautious approach; he noted that some offenders in the program "indisputably should be discharged," but stopped short of ordering the release of individual offenders.

"The public should know that the Moose Lake and St. Peter facilities will not be immediately closed," Frank wrote. "This case has never been about the immediate release" of any offenders.

Meanwhile, Dan Gustafson, the lead attorney representing the class of offenders suing the state, said that "no one is going to go out on a limb and agree to reforms until everyone is in agreement" on the changes.

"It's politically unwise," Gustafson said.

The significance of the decision, say legal experts, is that it firmly establishes federal court supervision of a program that legislators have long been loath to change. The result could be years of incremental reforms ordered by Frank and overseen by his appointees.

In Washington state, for instance, a ruling in 1994 declaring that state's sex offender program unconstitutional touched off 13 years of court oversight and reform.

"There is no simple lever that you can switch to fix this system," said Eric Janus, dean of the William Mitchell College of Law and author of a book on sex offender commitment laws. "You have problems with the treatment program, the absence of less-restrictive alternatives, and you need dollars to fix that. … Reform is going to take a long time."

But offenders at Moose Lake and St. Peter are impatient. Even before the ruling came down Wednesday, some offenders were so confident of immediate release that they had packed their belongings in special bins.

Some detainees are talking openly about the possibility of suing for damages for being wrongly confined for years without periodic risk evaluations, said Benjamin Alverson, a sex offender who has been held in the program since 2005.

"There are people here with full-blown PTSD from being locked up in an institution so long," Alverson said. "I assure you they will be seeking compensation for that."

Sen. Kathy Sheran, DFL-Mankato, who introduced legislation this year that would have established biennial reviews of committed sex offenders, among other reforms, urged her colleagues in the Legislature to take Frank's ruling seriously.

Sheran said she expects key stakeholders — including legislators, Department of Human Services officials and experts on sexual behavior — to convene immediately to craft specific reforms.

"It's really the community animosity and anxiety that is creating people's resistance to make changes to the system," Sheran said. "But now we have a clear statement that what we are doing here is wrong as it relates to the treatment of sex offenders. … We have no choice but to act."

Staff writer Patrick Condon contributed to this story. Chris Serres • 612-673-4308

Twitter: @chrisserres