On MSOP, judge targets repeat offenders — against the rule of law

Late last month, U.S. District Judge Donovan Frank finally saw the light regarding the Minnesota Sex Offender Program (MSOP). He finally realized that some repeat offenders simply can't be cured — and must be forcibly prevented from committing further outrages.

Driven by selfish passions, these compulsive violators of basic standards don't deserve the customary protections of our constitutional system.

The habitual miscreants Judge Frank has finally cracked down on (in more courteous words than mine) are Minnesota's political leaders. Setting aside a few worthy dissenters, this unprincipled flock of cowards has for more than 20 years conspired across party lines to perpetuate in MSOP a crime against the rule of law.

Despite being "on notice of the program's deficiencies for many, many years," as Frank put it in last month's ruling, the state's leaders have repeatedly exploited fears of sexual predators for political gain and refused to reform what is likely the most unjust program of its kind in the country.

Faced with that, Frank has finally stopped trying to preserve the usual constitutional preference for judicial deference to elected officials on state criminal laws. He has acted by court order to ensure that elementary constitutional rights will be respected — even in Minnesota.

Twenty or so states have "civil commitment" programs, under which certain sex offenders are confined to treatment programs after completing prison sentences. But most other states with such programs (forward-thinking places like Texas) regularly review clients' cases and have developed less-restrictive forms of supervision for offenders who are less dangerous or who make progress in treatment.

Largely because of political hijackings of nearly every discussion of MSOP over the years, Minnesota has become the nation's pacesetter in this field, with America's largest per capita population of committed "clients" (more than 700) enduring prisonlike incarceration with no serious path toward success in "treatment" and release.

And basically, Frank has found, the state neither knows nor cares how many of those in its sex-offender dungeon actually pose a continuing threat to the public. State officials "have no meaningful idea … which of those persons continue to meet the criteria for commitment …," the judge wrote, but the state "knows" that some who pose little risk "continue to be confined."

The judge's ruling is essentially that the state must get itself a clue about those it has buried alive, and perform meaningful assessments of all MSOP clients and whether they could be treated in a less restrictive setting. The process should start, he says, with several hundred elderly and mentally disabled inmates, along with those who committed their only crimes as juveniles.

As minimal and reasonable as this sounds, Gov. Mark Dayton is outraged. He has launched an appeal to higher courts. He has declared his determination to protect Minnesotans against even the "slightest" danger. He has conjured up horror stories of "a 5-year-old child" who will "never see her mother again because someone who committed previous crimes was released …"

This is the kind of counterfeit courage that has always led lynch mobs and witch hunts — fanning passions rather than doing a constitutional leader's duty to remind citizens that devotion to the rule of law for all lies at the core of our national ideals.

Dayton's predecessor, GOP Gov. Tim Pawlenty, caved in to political pressure on MSOP, too. But Dayton is in charge now, and he knows perfectly well that every single day the state of Minnesota releases men from prison and jail and pretrial detention who pose hard-to-measure dangers to the public; it is a practical and legal necessity. The difference is that no political spotlight illuminates those routine releases.

All that said, maybe this is also a moment for some positive thinking — for appreciating the wisdom of America's framers in bequeathing us a government of limited and separated powers, especially an independent court system empowered to uphold individual rights and government boundaries even when doing so isn't popular. MSOP is a textbook case for why that's needed.

There is no political constituency clamoring to defend any rights whatsoever for sex offenders. But Judge Frank, a life-tenured federal judge, is subject to no popularity contest. He has done his duty and deserves the gratitude of Minnesotans who prize justice.

Meanwhile, 2015 happens to be the 100th anniversary of one of the more uplifting acts of political courage in American history — by a governor, no less. There could be no better moment to salute it.

In 1915, Gov. John M. Slaton of Georgia commuted the death sentence of Leo Frank, the Jewish manager of an Atlanta pencil factory accused of raping and murdering a 13-year-old employee, Mary Phagan. Most researchers believe Frank was innocent of the murder, convicted largely because of anti-Semitism and class resentments. It's less clear whether he may have been guilty of sexual misconduct with his young employees.

But Slaton, after his own investigation, couldn't let Frank hang, even though his promising political career hung in the balance. "I can endure misconstruction, abuse and condemnation," Slaton said, "but I cannot stand the constant companionship of an accusing conscience..."

He never held public office again, and just two months after Slaton's order, a mob brazenly dragged Leo Frank from prison and lynched him.

Yet Slaton's integrity was not forgotten. He became one of President John F. Kennedy's "Profiles in Courage" for his Pulitzer Prize-winning 1956 book. Slaton's story also has been remembered numerous times in films and other books.

And earlier this year, to mark the centenary, a plaque in Slaton's memory was erected in Georgia, dedicated by Georgia Supreme Court Justice David Nahmias with words that ring true way up north in Minnesota:

"We need to remember those who stood tall in defense of the rule of law, to inspire all of us who need to stand tall when the rule of law is again threatened, as it is in one way or another almost every day."

D.J. Tice is at Doug.Tice@startribune.com.