On Wednesday, U.S. District Judge Donovan Frank is expected to issue a decision on the constitutionality of the Minnesota Sex Offender Program (MSOP). It is likely that the federal court is going to rule that Minnesota has failed to achieve a constitutional balance among public safety, effective treatment and the civil rights of MSOP clients. There is, understandably, public angst about the uncertain future of the MSOP, and the likelihood of the federal court ordering releases. However, mounting evidence indicates that the MSOP is less about veritable public safety and more about misguided public policy. Here are 10 reasons why Minnesotans should welcome, and not fear, federal court intervention.
1) The MSOP was created in 1994 to identify certain sexual offenders who might be at high-risk for reoffending and lock them up to prevent future crimes. The courts have ruled that sexual offender civil commitment (SOCC) is constitutional only if clients have a mental disorder that contributes to them being “highly likely” to reoffend, and if the goal of incarceration is treatment. After 20 years, and about 740 clients, no one has completed treatment and been fully released, resulting in constitutional concerns that treatment is disingenuous and that the MSOP is really “preventive detention.”
2) In 2011, the Minnesota Office of the Legislative Auditor identified multiple problems at the MSOP. This federal lawsuit followed in December 2011. In 2012 and 2013, a SOCC task force recommended changes. In a February 2014 ruling, Judge Frank admonished state leaders, saying: “The politicians of this great State must now ask themselves if they will act to revise a system that is clearly broken, or stand idly by and do nothing, simply awaiting Court intervention.” Since then, two legislative sessions have passed, and state government remains largely unresponsive.
3) To distinguish the “civil process” of incarceration for treatment from the “criminal process” of our prison system, forensic psychology is called upon to give SOCC medical legitimacy. Psychologists determine whether clients have a relevant mental disorder and use actuarial science to assess risk for future offending. Predicting future human behavior is highly speculative, raising concerns about whether the field of forensic psychology has the scientific capabilities to meet the constitutional integrity needed for SOCC.
4) Research conclusively indicates that, post-intervention, the vast majority of sexual offenders do not reoffend. Recent studies now indicate that those considered to be of “higher risk,” even MSOP clients, are unlikely to sexually reoffend. Most offenders can be safely treated and managed in the community. One study, specifically involving the MSOP, comes from the Minnesota Department of Corrections.
5) Thirty U.S. states and most countries around the world manage sexual violence without SOCC. The 20 states that have SOCC have mixed reviews. Wisconsin is demographically similar to Minnesota, yet has twice the prison population and half the number of individuals under SOCC; it has successfully released more than 100 clients back into the community. Texas, to save money, uses an outpatient system, but more than half of its clients are returned to prison for failure to cooperate with treatment. New Hampshire has screened hundreds of sexual offenders over several years and has civilly committed only a few. Missouri, like Minnesota, is facing a federal lawsuit for failure to treat and release clients. Vermont lawmakers considered SOCC and rejected it.
6) Sexual abuse is a serious problem in every society, and we should dedicate appropriate public resources toward prevention. However, over the last 20 years, Minnesota has spent $2 billion in infrastructure and operating expenses to keep about 740 individuals under SOCC. It costs Minnesota taxpayers more than $120,000 per year to confine each of the 715 clients currently in the MSOP. This effort toward secondary prevention draws public funds away from the primary prevention of sexual abuse. First-time offenders are responsible for 95 percent of sexual abuse.
7) The MSOP was designed to be completed in about three years, with the understanding that some clients might need more or less treatment. Among the issues that will be decided by the federal court is whether clients have a constitutional right to treatment, what constitutes adequate treatment and whether clients need to complete treatment in order to be released from the program. In most states with SOCC, clients are assessed annually to determine whether they are sexually dangerous; if they are not, they are released. The MSOP has done forensic risk assessments on only about 10 percent of MSOP clients and therefore cannot tell the court which clients in the MSOP meet criteria for release.
8) The MSOP was intended to treat the “worst of the worst,” or the most dangerous sex offenders in Minnesota. However there are more than 60 MSOP clients who were sent there on the basis of juvenile-only offending, 78 clients over age 65 (the oldest is 93), many clients with intellectual disabilities, and some who are in wheelchairs or otherwise infirmed. While it is likely that some clients in the MSOP should remain confined, SOCC in Minnesota appears to be greatly overreaching.
9) The MSOP staff and/or multiple experts testified at the federal trial that there are many MSOP clients who could be safely and successfully treated in less-restrictive settings, and others who could be conditionally or unconditionally released. One challenge that the court will have to confront is that the MSOP has acknowledged that it has community-based resources to provide housing and treatment to only about 5 percent of its current clients. Despite inadequate alternatives, there is no expectation that the court will indiscriminately “open the doors” at the MSOP.
10) A system that overreaches and the conditions at the MSOP caused Judge Frank to write in an August 2014 ruling: “It is obvious, that but for this litigation, [clients …] would likely have languished for years in the prisonlike environment of MSOP-Moose Lake without any realistic hope of gaining freedom. And of course it is of great concern to the Court that this may not be an aberrant case [but] symptomatic of a larger systemic problem.”
It now seems certain that the federal court will tell the leadership of Minnesota what is required to achieve constitutional balance to avoid further federal intervention, as happened in the state of Washington from 1994 to 2007.
Unless we believe that individuals who have sexually offended are evil rather than broken, and treatment is meant to be banishment in disguise, the MSOP must be a legitimate vehicle and opportunity for clients to return to their homes and families. Communities that have sent clients to the MSOP should prepare for them to return, creating support, not hindrances, for housing and employment. If rehabilitation is to be sincere and effective, we must both demand and facilitate recovery. If public wrath, sex-offender registries, residency restrictions and other civil regulations make it impossible for individuals to recover, they won’t. We should not use what “they” did to “us” to justify what “we” do to “them.” They come from us.
Reclaiming offenders is not only good public policy, it is the responsibility of a just and compassionate society. Successful treatment of offenders is not a zero-sum outcome for victims. When we help people rebuild shattered lives, as victims or offenders, it honors society’s promises to all its citizens.
Jon Brandt has been providing assessments and treatment for sexual offenders, as well as consultation and training on the prevention of sexual abuse in Minnesota, for more than 30 years. He is a clinical member of the Association for the Treatment of Sexual Abusers (ATSA), writes a blog for ATSA’s journal, Sexual Abuse: A Journal of Research and Treatment, and is the lead author in The Sex Offender: Insights on Treatment and Policy Development; Volume 8, Barbara K. Schwartz, Ed. “Doubts About SVP Programs — A Critical Review of Sexual Offender Civil Commitment in the US” (Civic Research Institute, 2015).