Minnesota’s politicians seem finally to have exhausted the patience of Minnesota’s judges where the long-embattled Minnesota Sex Offender Program (MSOP) is concerned.
A series of increasingly in-your-face decisions that reaches back several years culminated last week in a Court of Appeals ruling upholding the provisional discharge of a notorious rapist. Thomas Duvall’s bid for a measure of freedom after decades of treatment provided by the state incited the most recent political brawl over MSOP about five years ago. The result has been to once again make reform impossible through normal political policymaking channels.
In response to the apparently irreversible political paralysis, state courts now appear to be resorting to desperate measures. They have started actually treating state laws in this arena seriously — actually enforcing provisions that long did little more than provide the appearance that MSOP “clients” could potentially win at least some measure of greater liberty as they progressed in treatment.
MSOP’s clients are some 700 sex offenders, most of whom served prison sentences for their crimes, often many years ago, and were afterward indefinitely committed to a prisonlike treatment program, where supposedly they would be helped to overcome their deviant sexual passions if they could. In the whole nearly quarter-century history of the program, only a handful have gotten enough better in the state’s judgment to earn any meaningful reduction in custody level.
But change is afoot, within MSOP itself as well as in the courts. Duvall, whose record of scores of sadistic assaults in the 1970s and ’80s is unquestionably awful and frightening, has since become a “model client,” according to staff at MSOP. As described in the appeals court opinion, they have told several judicial panels that have reviewed Duvall’s petition for provisional discharge that he has completed all phases of treatment and successfully participated in “off-campus” actitivites. They say he is ready, under close supervision, for life in a halfway house wearing a GPS tracking device.
Initially, back in 2013, the administration of Gov. Mark Dayton acquiesced to Duvall’s limited release as part of a forthright effort to begin reform of MSOP in response to concerns raised by, among others, the legislative auditor and a distinguished, state-assembled task force — and in response to a federal lawsuit challenging the program’s constitutionality.
But when that reform effort, and especially Duvall’s case, drew condemnation from other politicians, including Republicans looking to run for governor in 2014 and DFL Attorney General Lori Swanson (who is running for governor this year), Dayton ran for cover, ordering his administration to again oppose any releases from MSOP.
That was the state of affairs in 2015, when U.S. District Judge Donovan Frank ruled MSOP unconstitutional. He ordered the program — which has provided less hope of release than most of the comparable civil commitment systems in about 20 other states — to re-examine the status of all its clients to determine who did and did not meet the criteria for remaining locked up. Defiant, the state appealed Frank’s ruling. And in early 2017, the Eighth U.S. Circuit Court of Appeals upheld MSOP as constitutional. Later that year, the U.S. Supreme Court declined to review the matter.
All of which makes what is happening now all the more interesting. While MSOP’s legal journey may have seemed to vindicate the program’s unyielding admirers, change has quietly continued. As a recent news story put it, in the last few years, “specialists at the MSOP have been more willing to support offenders’ petitions for release, and judicial panels have been less likely to override their professional opinion.”
In January of this year, a Court of Appeals panel approved unconditional release for Kirk Fugelseth, only the second offender in MSOP’s history to win complete freedom. The court held that the state had not proven that Fugelseth continued to need “inpatient” treatment, which is what state law required to deny release to a client in his circumstances and stage of the program.
Faced with a court delivering due process by following the law as written, legislators and Dayton swung boldly into action — to change that law. One of the limited number of things they accomplished in this year’s legislative session was to remove the word “inpatient” from the MSOP statute.
So the battle rages on over whether due process for all exists even in Minnesota — whether the state can strike a difficult balance between the desire for safety and the principles of limited government and the rule of law. State officials swiftly vowed to appeal last week’s approval of Duvall’s limited release to the Minnesota Supreme Court.
These days it sometimes seems that the courts, however imperfect, are the last redoubt of truth and backbone in our republic. And if “inpatient” was an important single word in the Fugelseth dispute, one word also stood out from the appeals court’s ruling on Duvall’s limited discharge, which the state’s highest elected officials have opposed for years, bringing in expert witnesses to contradict their own program staff’s recommendations.
At the end of a careful, dispassionate, 20-page analysis of the issues and arguments, the appeals panel concluded that the evidence considered “as a whole” defeats the state’s position — and it does so, the court added, “overwhelmingly.”
D.J. Tice is at Doug.Tice@startribune.com.