On Wednesday, it became increasingly clear that the state of Minnesota is unable to uphold the U.S. Constitution on its own. Instead, state government appears ready to hand off that fundamental duty to a federal judge — a dispiriting and likely costly outcome after nearly two decades of debate over the controversial program that locks up many sex offenders for treatment long after they’ve served their sentences.
Gov. Mark Dayton’s decision to suspend his administration’s support for provisional release for a limited number of sex offenders sent an unmistakable message to watchful federal courts: State policymakers still aren’t capable of setting aside politics and hammering out the reforms needed to balance public safety with escalating constitutional concerns and the program’s soaring cost.
The civil-commitment program, which has released one person in 18 years, is already in judicial cross hairs. In August 2012, the two judges overseeing a class-action lawsuit filed by offenders forcefully signaled their alarm and willingness to exercise their authority over the program if policymakers failed to act.
In the wake of Dayton’s announcement, it’s unclear when officials will be able to summon the collective fortitude to call a political cease-fire and make necessary fixes.
Following weeks of criticism of his administration’s tacit support for the provisional release of some sex offenders, a clearly angry governor directed Department of Human Services (DHS) Commissioner Lucinda Jesson to oppose future petitions for release until legislators act to reform the program and fund any changes. He also directed Jesson to suspend plans to move any offender in the program to secure community-based facilities. A state-owned facility in Cambridge had been under consideration for about a dozen offenders, sparking outcry from local residents.
Dayton’s move came as Republicans and a high-ranking official in his own political party, DFL Attorney General Lori Swanson, ripped the governor for the administration’s decision not to oppose the provisional release of one of the 698 offenders in the program. The offender, 58-year-old Thomas Duvall, has been convicted three times for sexually assaulting teenage girls.
An internal panel at the DHS evaluated Duvall and said he met the statutory criteria for a provisional release. Duvall would not simply be set free but would be placed in a halfway house with tight security, and would be subject to GPS monitoring, surveillance and other restrictions.
Dayton repeatedly blasted the criticism of the provisional release measures as political “gamesmanship.” At the same time, his decision to suspend support for a crucial reform — one that potentially could have helped allay growing constitutional concerns — allows gamesmanship to triumph yet again in Minnesota, a state where sincere attempts to address the program’s failings have been met for years with “soft on crime” attacks by political opponents in both parties. Swanson’s criticism is especially curious. She’s defending the DHS in the class-action lawsuit while giving opposing counsel plenty of ammunition for its argument that the state’s “treatment program” is a flimsy disguise for retroactive life imprisonment.
Instead of standing firm on the need to make difficult reforms to the program, Dayton essentially threw up his hands and walked away.
Duvall was an easy target for those trying to score political points, including GOP gubernatorial candidate and state Rep. Kurt Zellers. But that neither Dayton nor his critics indicated they might respond differently to a future release sought by an offender with a less troubling record than Duvall’s is a reason for pessimism about their political motives and commitment to make thoughtful changes.
Especially lamentable is that this year likely was Minnesota’s best chance to tackle the difficult challenges the program presents. Jesson has worked the hardest of any DHS commissioner on this issue and has done everything she possibly could. A bipartisan task force led by former State Supreme Court Chief Justice Eric Magnuson that includes legislators has offered up a general road map of reforms, with a more detailed plan coming early next month. That good work built upon a 2011 report by the Office of the Legislative Auditor that came to similar conclusions.
The timing also seemed promising because lawmakers didn’t face an election this fall. Last spring, a bipartisan majority of state senators passed legislation to begin the long process of reform even though leadership in both parties in the House failed to get it to a floor vote.
Minnesota lawmakers may not have come together to find solutions. But they and their constituents will have to face the consequences of inaction together. Choosing to let the federal court exercise its authority means ceding key decisions about which offenders get out, where they go and how much alternative facilities will cost. Those decisions will be made by two federal judges whose expertise lies in constitutional law — not in state budgets, corrections or public safety.
“It might look attractive to have a federal judge take over this, but it won’t be so attractive when the Legislature finds itself on the short end of a federal court injunction, when it’s a federal court or master who is making judgments about where to send state dollars,’’ said Eric Janus, dean and president of William Mitchell College of Law. “I don’t think that will feel welcome at that point.’’