State’s sex offender program is about to face Constitutional test

Published 10:02 am Monday, February 9, 2015

MINNEAPOLIS — Minnesota’s civil commitment program for sex offenders has been under fire for years by people who say it’s unconstitutional because it amounts to a life sentence. A federal judge has pressured state lawmakers to change the program to address concerns, but they have not.

The program’s future is now in the hands of U.S. District Judge Donovan Frank in a trial starting Monday that’s expected to last weeks. If Frank finds the law governing civil commitment of sex offenders is unconstitutional, he may order changes.

Some of the major issues:

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What’s this about?

Under state law, a person found to be sexually dangerous or to have a sexual psychopathic personality can be civilly committed to the Minnesota Sex Offender Program. In the program’s 21-year-history, more than 700 people have been indefinitely committed to high-security facilities in Moose Lake or St. Peter, and no one has been fully released. Two people are currently on provisional discharge under intense supervision.

Minnesota has the highest number of civilly committed sex offenders per capita among 20 states with such programs. Each sex offender lives in a high-security environment, and they were referred there by the state after they completed their prison sentences. Each state program runs differently and other states have had success in releasing offenders.

The state rejects the claim that the program is unconstitutional, saying in court documents that the program offers adequate care and security and is administered “in good faith for a diverse and challenging population of clients.”

When is indefinite commitment ok?

Civil commitment for sex offenders has to meet three requirements to be constitutional: the person must pose a high danger, have some form of mental disorder that makes it difficult to control behavior, and commitment must not be punitive — which means it has to provide legitimate treatment, said Eric Janus, president and dean of William Mitchell College of Law.

Attorneys for those who brought the case say Minnesota’s program doesn’t meet those standards.

Among other things, they say MSOP doesn’t do initial risk assessments on people new to the program, and it doesn’t do annual risk assessments to make sure residents are still dangerous. They say hundreds of residents have never been assessed to see if they still need to be committed.

Residents’ attorney Dan Gustafson wrote in court documents that the state doesn’t know whether each person in the program “is dangerous and in need of sex offender treatment.”

The state argues that residents can seek their own petition for reduction in custody, and the form is easy to fill out. The state says risk assessments are conducted as part of the petition process.

Sex offender treatment

The residents say the program offers treatment that’s a one-size-fits-all model that doesn’t help some of them. Some are mentally disabled or have lower IQs, some have severe mental illnesses, some are elderly and some are young.

The state says the treatment is adequate, is consistent with best practices, and that people are correctly placed.

Other issues

Attorneys for those who brought the case want to eliminate a special review board that hears petitions for release, and they will argue for other changes to streamline a release process that can currently take years.

They say the current law doesn’t require MSOP to petition for release of clients that no longer meet commitment criteria, and staff doesn’t make a practice of doing so. As a result, they say, some residents are kept in the program longer than necessary, which is unconstitutional.

Plaintiffs also argue that some elderly residents or those with mental disabilities could be in less restrictive settings. The state says MSOP has appropriately balanced the needs of safety and security with treatment, and that it does provide less restrictive alternatives.

Why the case is important

As Frank wrote recently in court documents, the case balances the rights of people in the program with the public’s fear that they may do new harm if freed.

The number of people sent to the Minnesota Sex Offender Program skyrocketed after the 2003 abduction and slaying of Dru Sjodin, a 22-year-old North Dakota college student, by a sex offender who had been freed after serving 23 years in prison for an assault and attempted abduction. Prison authorities hadn’t sought to commit the man before his release.

Some lawmakers have defended the program as essential to public safety. But Gustafson, the plaintiffs’ attorney, said the case is about constitutional rights, and he pointed out that residents have already done their prison time.

“This is about locking people up on the prediction that they are going to do bad stuff in the future,” Gustafson said. “Under our constitution, you cannot lock people up as preventive detention.”