Oct. 20: Facing lawsuit, Minnesota asks: When are sex offenders safe for release?

Moving to head off a federal takeover of Minnesota's sex-offender treatment program, state officials are on the verge of loosening the shackles for some offenders once deemed too dangerous or psychotic to be freed.

In coming months, the state Department of Human Services hopes to transfer some offenders housed in high-security facilities at Moose Lake and St. Peter to less restrictive settings — and perhaps to provisional discharge in the community. U.S. District Judge Donovan Frank, who is overseeing a class-action lawsuit filed by several offenders last year, has signaled that the state has little choice unless it wants the court to step in.

The problem is, no one knows definitively when a sex offender has been successfully treated.

No one wants to be held responsible for releasing another Alfonso Rodriguez Jr., who was out of prison just six months when he kidnapped and killed University of North Dakota student Dru Sjodin in 2003.

Sjodin's killing precipitated changes in the Minnesota Sex Offender Program (MSOP), which takes offenders who have finished their prison sentences but are deemed by a judge too dangerous to release. The number of offenders committed each year has tripled since then — to about 50 a year — and Minnesota now has the highest per capita rate of sex-offender commitments among 20 comparable states.

"It's almost inconceivable that the Minnesota sex offender population is more dangerous than any other state's. It's also inconceivable that they became three times more [dangerous] after this horrible, horrible thing happened to this child," said James Rosenbaum, a former federal judge who is co-chairing a special task force studying reforms.

Its recommendations are due Dec. 1, and Rosenbaum said it's the most difficult problem he's ever tackled.

"You don't want them in your neighborhood. I don't want them in my neighborhood," he said. "But we release other sex offenders every day. We release murderers every day. It is very difficult to maintain the system we have in place and respect the Constitution at the same time."

The U.S. Supreme Court has upheld civil commitment of dangerous sex offenders as long as they are receiving treatment designed to return them safely to the community.

At its two MSOP campuses, Minnesota offers cognitive therapy and behavior modification to more than 700 residents, all but one of whom are men. To date, though, just one has succeeded in obtaining a "provisional discharge," with intensive supervision and location monitoring in the community. No one has been discharged entirely.

"If nobody ever gets out, is this really a plan for treatment?" said Dan Gustafson, a Minneapolis attorney representing offenders in the class-action suit.

The lawsuit portrays a grim life inside MSOP facilities, which are more like prisons than hospitals. The offenders say that most of their time is unstructured and that they are subject to arbitrary restrictions and punishments. Their mail is read, their newspapers censored. Treatment progresses at a glacial pace through three phases. The result is a pervasive sense of "hopelessness, powerlessness and fear," the suit says.

"This is much like Guantanamo Bay," Gustafson said, referring to the U.S. detention facility for terrorism suspects in Cuba. "It's easy to have the political will to put someone in, but it's hard to let them out."

Last spring, the Minnesota Senate passed a bill to reform the MSOP by modeling it after programs in New York and Wisconsin. Companion legislation faltered in the House.

"There's a lot of political gain [in] making one group or another look like they're soft on sex offenders," said bill sponsor Sen. Kathy Sheran, DFL-Mankato, who hopes to resurrect it in 2014.

Human Services Commissioner Lucinda Jesson isn't waiting. She's already seeking contractors to set up less-restrictive housing and treatment programs around the state and has taken steps to speed up transfer petitions.

"We need to build more of a continuum [of care] for sex-offender treatment," Jesson said in an interview. Currently, she said, the state has just two options: House offenders in prisonlike buildings surrounded by razor wire or set them free.

Gustafson credits Gov. Mark Dayton's administration for trying, but says its efforts are "much too little and too slow." Yet he can understand the challenge. "For the most part, the people at Moose Lake are people that would shock you if you looked at their files," he said.

State officials got a taste of public sentiment at two well-attended hearings Sept. 30 in Cambridge, where they hope to transfer a dozen disabled, frail or elderly offenders early next year.

"In Cambridge, I heard, 'Why here? Why us? Why now?' " said Deputy Commissioner Anne Barry. The answer to the first question was simple, she said. The state owns the property, a treatment facility that has served various populations for years. The answer to the second, she said, is that Cambridge is just first in line.

"We're going to see the courts issuing provisional discharges," she predicted.

Barry also acknowledges that the offenders' lawsuit raises serious concerns.

"How is it that a population that has served their time and is now in treatment — in some cases for decades — never gets out? It gets to every right we have under the Constitution."

Which leaves Cambridge residents asking crucial questions: Can sex offenders ever be cured? And how will the state protect the public?

Elizabeth Barbo, the MSOP's reintegration director, responded this way: Sex offenders can't be cured, but their behavior can be managed with intensive treatment and supervision.

Grant Duwe, a researcher for the Minnesota Department of Corrections, has spearheaded the development of a sophisticated screening tool, which he says has proved largely accurate in predicting recidivism by sex offenders. Duwe said that, overall, sex offenders are less likely to reoffend than most other felons. Their recidivism rates, he said, are small and have been going down because of better treatment and longer sentences and supervision.

In a peer-reviewed study, Duwe's screening tool predicted a four-year reconviction rate of just 3.5 percent for 1,653 sex offenders who had been released from prison; 2.8 percent actually reoffended. It predicted a reconviction rate of 5.6 percent for 261 offenders who were recommended for commitment but were ultimately rejected; 6.5 percent reoffended. The tool predicted that 9.2 percent of the 105 offenders who are in the MSOP would have reoffended in four years. Duwe extrapolated those figures over 50 years.

"At most, we would estimate that about roughly one in three of the civilly committed offenders that we looked at would sexually reoffend within the course of their lifetimes," Duwe said.

That rate, he noted, is lower than the legal threshold for committing an offender in the first place. In most jurisdictions that allow civil commitments, a judge must find that an offender is more likely to reoffend than not.

Offenders seeking a way out of the MSOP must go through a special review board and then petition an appeal panel of the state Supreme Court. Three recently were granted transfers to community preparation, the last stage before provisional discharge; three more petitions are pending. If approved, 18 offenders will be poised to move into the community under close supervision at some point.

Jesson recently endorsed provisional discharge petitions from three offenders, noting that their discharge plans include numerous safeguards such as continuing treatment, GPS monitoring and covert surveillance.

"But I do think [these] decisions have to be made very, very carefully," she said. "Because we do not only have to think about treatment, we do have to think about public safety needs as well."

Dan Browning • 612-673-4493