Minn. political leaders struggle to fix constitutionally questionable sex offender policy

Two years before Gov. Mark Dayton said that he "strongly believed" in the constitutionality of Minnesota's legally questionable sex offender incarcerations, the DFL governor just as strongly criticized the program for practices he said left many offenders "warehoused forever" beyond their prison terms.

This week, U.S. District Judge Donovan Frank rejected the state's request that he delay his own court-ordered reforms to the controversial Minnesota Sex Offender Program (MSOP). The state immediately filed another appeal to stay Frank's ruling, this time to the Eighth Circuit Court of Appeals.

Dayton is fully on board with the appeals, as attorneys for the state look for a higher court to overturn Frank's June ruling that the program is unconstitutional. The DFL governor said his earlier criticisms of the program still stand, arguing it's not a contradiction.

"Something that may not be good public policy is not by definition then unconstitutional," Dayton said in an interview with the Star Tribune. He said MSOP "wasn't set up with this intention of holding people indefinitely."

A legislative solution to the program's much-discussed flaws has eluded Dayton and the rest of Minnesota's political leadership for more than a decade. During that time, several state task forces and various independent experts cautioned that Minnesota's sex-offender policy was constitutionally questionable.

"It's tough because you have to take a vote that could be construed as 'soft on crime,' " said Senate Majority Leader Tom Bakk, DFL-Cook.

Frank seems ready to force the issue. At the end of October, he ordered the state Department of Human Services to rapidly accelerate risk evaluations for all 720 sex offenders now detained at facilities in Moose Lake and St. Peter. Frank also wants the Legislature to put in place alternative, less prisonlike living arrangements for those deemed less likely to commit another sex crime — particularly offenders who are elderly, disabled or who only offended as juveniles.

State leaders "have refused to propose any solutions," Frank wrote in his Oct. 29 ­ruling. He later added: "The court will not tolerate delay."

To date, delay has been the state's chief tactic. Even as Dayton and legislative leaders in recent days have mulled the possibility of a special legislative session late this year or early next to deal with a handful of issues, none has suggested changes to sex offender policies be on the agenda.

"Political leaders have appointed study groups, they hired special advisers, and they talked about the situation but never tried to cure it," said Sen. Warren Limmer, R-Maple Grove. "And so it became a political hot potato over many years."

An independent panel of medical experts criticized Minnesota's methods as punitive and coercive in 2003, when only about 200 sex offenders were under its supervision. Another task force mounted similar criticisms about a decade later, and Minnesota's legislative auditor separately arrived at much the same conclusion.

Limmer was among a group of bipartisan senators who helped pass a bill in the state Senate in 2013 aimed at hastening regular evaluations and setting a clearer path for offenders to enter less restrictive settings. Dan Gustafson, an attorney for several of the offenders who filed the lawsuit against the state, said that bill's passage into law likely would have put the issue to rest.

Dayton supported that bill, but the state House never acted on it.

Frank's series of legal warnings has given rise to concern that if state leaders resist long enough, he might directly order the release of some offenders into less restrictive settings. But with Dayton, Attorney General Lori Swanson and legislative leaders all supporting an appeal of Frank's ruling, Gustafson predicted the legal wrangling would drag on for years.

Bakk, who supported the 2013 legislation, said many senators and representatives worry about how such votes could be spun in campaign ads (as in, Call Senator So-and-So and ask why she voted to release sex offenders into the community). If someone released from the program were to commit another sex crime, the political stakes would grow even higher.

"Another one of my hard realizations was that everybody's going to play politics with this issue," Dayton said. But it's an impulse, he said, that's about more than just preserving political careers.

"Doing what the judge is demanding, to the extent he's demanding it, would I think be largely unsupported by the general public," Dayton said. He has repeatedly cited a hypothetical worst-case scenario, saying he doesn't want to have to face the family of a person who has been killed or brutalized by a sex offender after they were released into a less restrictive setting.

Rep. Tina Liebling, DFL-Rochester, was on the more recent task force examining the program and has advocated for changes aimed at shoring up its constitutionality. She said simply making the program operate more effectively should not be seen as equivalent to lessening supervision of sex offenders.

"It's not a matter of, it's either it's constitutional or it's safe," Liebling said. "That's a false dichotomy. We can have a better program that still keeps Minnesotans safe."

To that end, Dayton said that when the Legislature meets in regular session in March, he is likely to propose about $10 million to accelerate the rate of psychiatric evaluations for the program's patients, as Frank has ordered. He said he'd also probably have to ask the Legislature for some money to build or rehabilitate facilities that could serve as less restrictive settings, which is all but certain to cause a huge political outcry for whichever communities are eyed as sites.

Any spending on the sex offender program also will have to compete with the many pressing needs that fall under the Department of Human Services budget. "We aren't able to do the innovative kinds of things we want to do for people who are more deserving of the limited dollars we have for public help," Dayton said.

Of the various groups in power at the Capitol, House Republicans have been most reluctant to make any changes at all to the program. Speaker Kurt Daudt, R-Crown, said he and GOP colleagues would be willing to discuss some of the new spending that Dayton has proposed.

But lawmakers are heading into yet another state election year, one with all 201 members of the Legislature on the ballot.

"Our position is always keeping in mind what keeps Minnesota safe," Daudt said.

Patrick Condon • 651-925-5049