The fate of Minnesota's controversial system for confining sex offenders beyond their prison terms was cast further into doubt Wednesday, as a federal judge indicated that he would allow portions of a high-profile legal case challenging the constitutionality of the sex-offender program to proceed.
At a hearing Wednesday, U.S. District Judge Donovan Frank said he would render a decision within 60 days on key reforms sought by a class of sex offenders who claim the Minnesota Sex Offender Program (MSOP) violates their due process rights. "The time has come for the court to rule on what is in front of it," Frank said.
Frank's comments Wednesday raise the specter of a federal judge imposing costly and dramatic changes to how hundreds of rapists, pedophiles and other sex offenders are treated after prison — without input from state legislators and officials who run the program. The changes being considered include the release of sex offenders to less restrictive settings and the appointment of a federal master to oversee the program.
Such a move would give the federal court unprecedented oversight of sex offenders in Minnesota, while potentially limiting the power of legislators and other elected officials to move forward with long-sought reforms to the MSOP.
"The MSOP is a creature of the state Legislature and changes should be made by the Legislature," said Rep. Tina Liebling, DFL-Rochester, and chairwoman of the House Health and Human Services Policy Committee. "This represents a very hands-on takeover of some aspects of the program."
Task force options
Just two weeks ago, a state task force appointed by Human Services Commissioner Lucinda Jesson recommended sweeping reforms to the MSOP, following two years of meetings. The group called for the creation of a centralized state court to oversee the commitment of rapists and other sex offenders, as well as options for less violent offenders to live in less restrictive settings, among other measures.
Liebling and other influential legislators, including Sen. Kathy Sheran, DFL-Mankato, had been crafting draft legislation that would include many of the recommendations made by the task force. These legislators had planned to introduce a bill reforming the MSOP when the Legislature reconvenes in February.
Now, with a decision on the legal case expected within 60 days, legislators may be left with little choice but to implement reforms that could be expensive and politically unpopular.
"My concern is that we lose control over how we deal with offenders in our state, and that we have a process imposed on us that we are responsible for implementing without having an opportunity to make it work," Sheran said.
The size and cost of the MSOP have exploded over the past decade, and it now costs taxpayers three times more than keeping offenders in prison.
In 2003, after the kidnapping and murder of college student Dru Sjodin, the state Department of Corrections began recommending more sex offenders for civil commitment. Currently, nearly 700 sex offenders are being held indefinitely at high-security treatment centers in Moose Lake and St. Peter, up from 199 in June 2003. Minnesota now confines more sex offenders per capita than any other state.
At the hearing Wednesday, Frank heard starkly varying descriptions of Minnesota's system of committing sex offenders to treatment after they complete their prison terms.
Attorneys representing a class of sex offenders referred to the MSOP as "broken" and as a "failure," because almost no one in the program is ever released. Just one person has been successfully discharged from the program in its 19-year history.
The attorneys have filed motions calling on the judge to declare the program unconstitutional and to appoint a special master to oversee the program until offenders' rights are preserved. The attorneys have also asked the judge to order the immediate establishment of less restrictive treatment settings for sex offenders and to re-evaluate all offenders at Moose Lake and St. Peter to determine if they still pose a risk to society.
"The results of the program don't just speak for themselves — they scream for themselves," said Daniel Gustafson, a Minneapolis attorney representing sex offenders in a class action lawsuit against state officials who administer the program. "The statute that was supposed to treat and release people has failed."
State defends options
An attorney with the state attorney general's office, which is representing the state Department of Human Services, which administers the MSOP, argued that the program meets the constitutional requirement for due process in part because sex offenders are moving through the various phases of treatment.
Deputy Attorney General Nathan Brennaman argued that the state had already moved to create a less restrictive treatment option for sex offenders committed at its sex-offender treatment campus in St. Peter. Sixteen sex offenders live in a separate house outside the razor wire and they have certain privileges.
At the same time, Brennaman argued that the judge would be overstepping his legal authority by imposing the creation of less restrictive living settings from the bench.
"This is a huge imposition on state sovereignty … for you to order the creation of these less restrictive facilities," Brennaman argued.