The past year inspired little confidence that Minnesota can shoulder the responsibility for reforming its costly, potentially unconstitutional sex offender civil commitment program, which keeps some offenders locked up long after their prison sentences have ended.
With the program now in federal court cross hairs, state policymakers have repeatedly squandered opportunities to reform the program in ways that would balance public safety and constitutionality concerns. Last spring, the state House failed to vote on a reform bill passed by the Senate. This fall, the temptation to score political points at the expense of anyone tackling this thorny issue proved too much. Gov. Mark Dayton directed his administration to oppose consideration of any future provisional discharges of the program’s less risky offenders after coming under fire from Republican gubernatorial candidate Rep. Kurt Zellers and DFL Attorney General Lori Swanson.
It’s hard to believe that officeholders will summon the political courage to attempt reform again with the 2014 elections looming. But this week’s release of a carefully crafted set of recommendations for “rationalizing” the program inspires cautious optimism. Perhaps the window has not quite closed for Minnesota to act before a potential federal court takeover of the program — potentially ceding to the judiciary key decisions about the program’s cost, release criteria and the locations of less restrictive facilities.
The recommendations from the state’s Sex Offender Civil Commitment Advisory Task Force fill the latest report on the constitutional corner the state has painted itself in by creating a program that has provisionally discharged one person in 18 years. In a remarkably clear and brief 18 pages, the task force makes a persuasive case that reforms are not only doable but sensible.
The overarching message that should give Minnesota politicians the fortitude to try again during an election year: A program improved through greater reliance on medical and legal expertise in determining sex offenders’ fate would better meet the public’s expectation of protection from the “worst of the worst.” Better insulating the process from political pressure would ease constitutional concerns as well, helping ensure that Minnesotans continue to make key decisions about protecting the public while updating the program.
The report’s 22 members included law enforcement leaders, victims’ advocates, law school professors and a bipartisan array of lawmakers. Its chair and vice chair were Eric Magnuson, the former chief justice of the Minnesota Supreme Court, and James Rosenbaum, a former U.S. district judge.
The panel’s deep expertise and wide-ranging viewpoints should inspire respect for the group’s consensus recommendations. Not surprisingly, it steers away from dramatic shifts in the program — there’s no sweeping call to let anyone or any group out, for example. It also hews to previous work by a 2005 task force and a 2011 report by the well-regarded office of the legislative auditor.
Key recommendations would largely put the state judiciary in charge of the civil commitment process. The report calls for a centralized screening unit made up of experts who would “use the most current and validated risk assessment tools” to identify individuals best suited for commitment. Another recommendation would create a special court comprised of retired judges to evaluate commitment petitions, as well as a specialized office providing defense. The task force also calls for automatic periodic reviews of those who are civilly committed, something that many other states do.
None of these steps would result in rapid, dramatic changes to the program. But they would help develop more objective and consistent criteria for determining who enters the program and who might, with least risk, move to a less restrictive facility or be discharged provisionally. Over time, that would yield “consistent adjudications” and allow the state to develop a “coherent body of commitment jurisprudence” that is a “necessary component of any plan to rationalize the civil commitment system,” the report said.
The task force met more than 20 times and deserves the state’s gratitude for tackling such a thorny policy issue with dedication. Passing its reforms is a sensible next step. Setting up a similar task force to develop recommendations on requirements for less restrictive facilities and where to put them would underscore the state is serious about addressing the federal judiciary’s concerns. Toxic politics has kept the state from acting on its own to overhaul this troubled program, but this latest report is a reminder that smaller steps are both substantive and still possible.