Panel recommends release of man held in sex offender program

  • Article by: PAUL MCENROE , Star Tribune
  • Updated: June 5, 2014 - 11:23 PM

In first test of MSOP ruling, state must show that this patient poses a public risk.

A man held in Minnesota’s sex offender treatment program for offenses he was charged with when he was 10 years old may soon be released unless the state can convince a federal judge that he poses a significant public safety risk.

U.S. District Judge Donovan Frank has ordered officials from the Minnesota Department of Human Services (DHS) to appear before him Wednesday to explain why he should not “immediately and unconditionally” discharge the patient. The man was committed into the program when he was 19 for behaviors he engaged in between the ages of 10 and 14, according to court filings. He has never committed a crime as an adult.

Known in court papers as “ET,” he is one of 52 men being held in the Minnesota Sex Offender Program (MSOP) who don’t have adult criminal histories but who were nonetheless committed indefinitely. It is not known what year the man was committed. Just under 700 sex offenders are being held in facilities in Moose Lake and St. Peter.

Wednesday’s hearing is the first since a February court ruling in which Frank ordered a team of experts to review the standards of treatment for all civilly committed sex offenders as well as how other states provide treatment for “lower-functioning” sex offenders in community settings.

Frank, who described MSOP as “draconian” and “clearly broken” in his February ruling, also held out the possibility of the federal court taking stronger action if the Legislature did not make reforms. Efforts to address some of the program’s shortcomings went nowhere during the recent legislative session.

Attorneys who have argued for years that the program is unconstitutional said Thursday that the panel’s recommendation regarding “ET’’ sets a precedent that puts the onus on the state to prove — case by case — that it is providing appropriate care for all the clients being held in prisonlike conditions.

“It’s a fairly extraordinary order by the judge because he’s putting the burden on the state to show why this man’s continued confinement is not unconstitutional,” said Eric Janus, a longtime critic of the program and dean of the William Mitchell College of Law in St. Paul. “The judge is saying to the state: ‘You need to come in and tell me why I’m wrong not to release this person immediately.’ This is the first person who will be brought forward and shown that he does not fit the sexual predator mold. We’re on the verge of a federal judge telling the state to release somebody from there.”

The panel concluded that the patient’s sexual offenses as a juvenile were due to his own history of sexual victimization “and a lack of understanding as to how to deal with his trauma.” The experts concluded: “Overall, there is little evidence to suggest that ET is a dangerous sexual offender who poses a significant risk to public safety.”

The panel told Frank that it determined the client would find safe haven with a welcoming family member and be able to work upon discharge. And the experts noted that the client had already “completed treatment related to his sexual offending history before placement at MSOP and it is unlikely he requires additional intervention.”

DHS officials said in a statement Thursday that they plan to fight the panel’s recommendation. “We will show why this client should not be immediately discharged and why his continued treatment is constitutional,” officials said.

Daniel Gustafson, the plaintiff’s attorney in the class-action lawsuit brought against DHS, said he didn’t know why the panel decided this particular client should be the first person discharged. “In February, we argued that the law used to hold these people was unconstitutional because there was no annual review, that the treatment was a failure because no one was being released,” Gustafson said. “At the time, the judge denied because he said we had no evidence. Now, this is the beginning of the evidence that shows this program is being operated in an unconstitutional manner. Now, the court’s own experts are saying that this man has no business being held in MSOP.”

Paul McEnroe • 612-673-1745

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