The recent ruling by a federal judge on Minnesota’s controversial sex offender civil commitment program is 75 pages long and peppered with legal jargon and long footnotes. But its message is unmistakable.
The federal judge weighing the program’s dubious constitutionality is not only prepared to take over, but is already taking solid steps to do so if lawmakers once again shirk their duty to reform a costly program that locks up some sex offenders indefinitely for treatment long after they’ve served their prison sentences. In nearly two decades, just one person among the nearly 700 in the program has successfully completed treatment, raising questions about whether these commitments are thinly disguised prison sentences for crimes that might be committed in the future.
Last week’s ruling concerned whether the class-action lawsuit filed by program patients should proceed. In allowing the case to go forward, U.S. District Judge Donovan Frank easily dispensed with the state’s main objections. He then used the ruling to sternly warn lawmakers of their responsibility to reform a program with “grave deficiencies.”
But Frank’s ruling went well beyond that. It suggests that the judge recognizes that it may fall to the federal court to institute remedies, given the lack of political will to do so. Last year, the Minnesota House failed to pass modest reforms approved with bipartisan support in the state Senate. Gov. Mark Dayton also moved in late 2013 to end his administration’s support for provisional release for a limited number of offenders.
Frank’s ruling not only clearly lays out the legal basis on which the court could take over the system, it also shows that he has taken concrete steps to prepare for this responsibility. Among them: hiring experts at state expense — estimated cost is about $3 million — to advise the court on sex offender risk assessment, placement, and care and treatment standards.
According to the ruling, the experts will review selected patient charts at the outset, with “a complete and independent evaluation of each patient” ultimately being necessary. These measures indicate that Frank is gathering the detailed data needed for a systemic analysis — a critical component of constitutionality considerations. Experts also will be going through individual files to determine who belongs in the program and who doesn’t.
The ruling also indicates that court officials have already scrutinized the program and come away troubled. A disturbing point raised in footnotes is that the Minnesota Sex Offender Program (MSOP) is broken up into three treatment phases and that “no sex-offender-specific treatment whatsoever is provided in Phase I.”
But “as of January 1, 2012, 64 percent of MSOP patients were in Phase I.”
This means that the majority of those in the program are not getting specific treatment for their condition, even though many have been in the program for years.
The ruling left little doubt that Minnesota is just about out of time to pass reforms and avoid ceding control to the federal courts, where officials’ expertise lies in matters of law and constitutionality, not in corrections or state budget concerns.
The ruling so far has disturbingly failed to incite the urgency in lawmakers that it should have. While Dayton has convened two policymaker meetings on the issue since last fall, there’s little indication that reforms will make headway in the House — something that might reassure the court that lawmakers take seriously their constitutional obligations.
There’s no hearing formally scheduled in the House on the Senate reforms. House Republican leaders didn’t respond to an editorial writer’s inquiry about support for reforms. A spokesman for the House DFL majority said Wednesday that bipartisan support is critical — a position that underscores election-year fears that taking action will lead to “soft-on-crime” campaign attacks by the GOP.
Some legislators also simplistically contend that reform is simply a matter of passing longer prison sentences for future sex offenders. However, this does nothing about the thorniest constitutional problem: what to do with those already in the program.
The lack of urgency suggests that lawmakers just don’t grasp that this may well be their last chance to act.
“The case will be ripe for a decision before the Legislature will meet again,’’ said William Mitchell College of Law Dean Eric Janus. “Now is the time.”