Minnesota must change sex offender program, judge orders

  • Article by: LARRY OAKES , Star Tribune
  • Updated: August 17, 2012 - 12:05 AM

Federal judge orders less-restrictive options for those in the controversial system.

A federal judge has ordered Minnesota to reform its system for civilly committing and confining paroled sex offenders to indefinite treatment, a controversial practice that has drawn international criticism because almost no one has gotten out.

Chief U.S. Magistrate Judge Arthur Boylan on Wednesday ordered state Human Services Commissioner Lucinda Jesson to convene a task force of experts to recommend options less restrictive than the state's prison-like treatment centers and to suggest changes in how offenders are selected for civil commitment, as well as how they might earn release from the program. The order came during pretrial discussions in a class-action lawsuit brought by patients who argued that their indefinite detention after completing their prison sentences is unconstitutional.

Critics of the Minnesota Sex Offender Program (MSOP) hailed Boylan's order as an unprecedented and significant step toward changing a system that has been a magnet for controversy since its creation in 1994 with the construction in Moose Lake of a sprawling campus surrounded by razor wire.

The program was created to treat small numbers of the state's worst sex criminals who had completed their prison sentences but were deemed too dangerous to release.

But the 2003 killing of college student Dru Sjodin by a rapist newly released from prison prompted a surge of commitments of all types of sex criminals, from rapists to nonviolent molesters. The state went from committing an average of 15 per year before 2003 to 50 per year after that pivotal year.

The program's population has soared to more than 600 -- the most sex-offender civil commitments per capita in the country. Only two have won provisional discharge. One of those, Ray Hubbard, was pulled back into a treatment lockup because a psychiatrist thought he might reoffend. He died shortly thereafter.

"It's a rather extraordinary step," William Mitchell College of Law President Eric Janus said of Boylan's order.

"I would view this as an indication that the court looks at this as a substantive and important issue that as a matter of federal constitutional law needs to be addressed," said Janus, author of "Failure to Protect -- America's Sexual Predator Laws and the Rise of the Preventive State."

Former state Sen. Don Betzold, chief author of the 1994 Sexually Dangerous Persons Act that created the current civil commitment system and MSOP, said the courts have repeatedly upheld the law as constitutional because judges believed the confinement was for treatment and that the public has been reassured that a subset of dangerous sex offenders are not free to strike again.

However, even Betzold, a lawyer, said the lack of releases is a problem because it invites the conclusion that the program's only purpose is confinement.

"The law has stood the test of time, but the questions raised are valid ones," he said. "The burden will be on the Department of Human Services to show offenders can receive effective treatment."

Facing a risk

The lead attorney for the patients, Dan Gustafson, called Boylan's order "a significant step" toward making the MSOP more effective and fair.

"If you're going to commit these folks, you have to give them legitimate treatment and the legitimate opportunity to get out," said Gustafson, adding that unless the state reforms the system, it risks that the courts will declare the program unconstitutional and order releases, or mandate program improvements more expensive than the state can afford.

Some say it's already too expensive, costing the state more than $300 per day for each offender, compared to less than $90 per day for offenders getting treatment in state prisons.

In a report last year, Legislative Auditor James Nobles said the state should provide better therapeutic treatment to the program's more serious offenders while considering less expensive, more flexible alternatives for offenders not deemed a risk to the public -- a view since embraced by Gov. Mark Dayton's administration.

Anne Barry, who oversees the MSOP as deputy commissioner of the Department of Human Services, said Boylan's order "echoes" several of Nobles' recommendations and efforts by some state lawmakers who have begun researching less-restrictive alternatives to the MSOP.

"This order recognizes that improving the system ... requires various perspectives as well as careful research and deliberation, not just a mandate from the court," Barry said Thursday in a statement.

Concern about the system has been expressed in places far afield from Minnesota.

In June, a high court in England refused to extradite an accused pedophile back to Minnesota who might have wound up in the MSOP, saying indefinite detention violated international human rights protections.

'Die is cast'

Boylan ordered that the state try to pack the task force with experts in the civil commitment system and the MSOP, including current or former legislators, prosecutors, judges, police, attorneys for patients, and state and local officials who deal with offenders.

The order "has the right categories of people identified," Janus said. "The key will be whether the group can function in a way not duly affected by the volatile politics surrounding this issue."

That won't be easy, said state Rep. Tony Cornish, R-Good Thunder, who has studied the MSOP and civil commitment system as chair of the House committee on Public Safety and Crime Prevention Policy and Finance.

Cornish said that when he and other legislators examined issues with the program this year, they found "there was no appetite in the Legislature for letting anyone out. They'd rather spend millions of dollars keeping people locked up than take the chance of something bad happening."

Now that a federal judge has ordered the state to look at other alternatives, policymakers may have to make decisions they find difficult to stomach, Cornish said, although the court mandate also may give them more of the political cover they need to make changes.

"The die has been cast," Cornish said. "Now we have to find a blend that will satisfy the court but still protect the public."

Larry Oakes • 612-673-1751

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