There’s a lot of talk these days about devotion to the Constitution and the limits it places on government’s power over individuals.
The right to own a gun, to define marriage for oneself, to do as one pleases with one’s property, to choose to end a pregnancy, to speak in ways others find distasteful — all these and many other freedoms find articulate champions.
But sons and daughters of liberty face a test in Minnesota this year. Can we make peace with constitutional limits on government’s power to imprison people just because we’re afraid of them?
That’s the issue raised by the need for Minnesota policymakers to reform the Minnesota Sex Offender Program — lest a federal court “fix” the troubled system for us.
The MSOP story is long, tangled, and unattractive in several ways. Minnesota is one of 20 states that has implemented a “civil commitment” system for “sexually dangerous persons.” These are generally men who have completed prison terms for sex crimes but are judged to pose a continuing risk of reoffending. They are held in supposed treatment facilities that strongly resemble prisons, and a bare handful have ever been released.
The MSOP population grew slowly after the program’s inception in the early 1990s but took off after a political mudfight followed reports of possible changes a decade ago. Today, with almost 700 “clients,” Minnesota has the largest civil commitment program, per capita, in the nation, and perhaps the most constitutionally dubious one. Its costs, much higher than prison costs, are soaring.
Last summer a federal judge who is hearing a constitutional challenge to MSOP from some of its clients sent an unveiled message to Minnesota’s leaders. He ordered the state to impanel a task force to advise the Legislature on ways to create less-restrictive treatment alternatives for offenders who pose less risk or make progress in treatment. A distinguished panel was duly named, and has been at work, led by former state Chief Justice Eric Magnuson and retired U.S. District Judge James Rosenbaum.
Magnuson told an editorial writer that the federal judge’s order should be seen as a “serious step that he would not have taken if the lawsuit was frivolous.”
In less lawyerly language, Minnesota may see MSOP declared unconstitutional if it doesn’t make some changes, and quick.
The trouble is that the U.S. Constitution’s liberty guarantee does not allow government permanently to imprison people merely because it has decided they might commit crimes in the future. Imagine the possible abuses if such a power did exist. Clients in MSOP have served the punitive sentences the law required when they committed past offenses; the only justification for holding them further is the idea that they are receiving treatment for a disorder — which presumes some possibility of getting well and getting out.
“We have to satisfy the court that we have a real treatment program,” says Rep. Tina Liebling, DFL-Rochester, author of one of several bills before the Legislature (HF1139; SF1014) that would make reforms in line with the task force’s recommendations.
In essence, those reforms call for the state to develop a system of “strict and intensive supervision.” It would be an alternative for committed offenders whose risk level and/or progress in treatment make unnecessary the rigid security found at MSOP’s only facilities today. Most other states that civilly commit sex offenders have such alternatives. The reforms would also establish automatic annual review of each client’s status. And the legislation calls for a public education campaign to help Minnesotans understand the need for change and to ease concerns that public safety would be sacrificed.
The very thought of relaxing restrictions on “sex offenders” would naturally fuel fears in the general public. Yet as Liebling emphasizes — along with Sen. Tony Lourey, DFL-Kerrick, coauthor of reform legislation in the Senate — the cause of public safety in fact may be ill-served by the massive resources MSOP consumes to incapacitate a relatively small number of offenders.
Reform that better matches security levels to threat levels could free up millions to intervene more effectively with other potentially dangerous individuals and to combat the broader causes of sexual violence.
The Legislature should act on changes along these lines this year. To run away from what is admittedly the toughest of issues would be to leave the federal court little choice but to seize control of Minnesota’s sex offender program. Ill-equipped to make human services or corrections policy, a court in that position, as Magnuson puts it, would act “as a broad sword, not a scalpel.” The results could be ruinously costly, ineffective and even dangerous.
Above all, Minnesota needs a constructive debate on this touchy issue, free from political muggings and attempts to take partisan advantage of public qualms. No one wants to endanger the public to save a buck; no one has gone soft on predators. Encouragingly, such reckless charges, once common on this issue, haven’t been heard in the past few years.
On MSOP, Minnesota’s leaders simply need to do what they’re usually good at — develop a flexible, humane and realistic public policy, one that respects the rights even of those who frighten us.