I believe that the Minnesota Sex Offender Program (MSOP), if properly administered, meets the scrutiny demanded by the U.S. Constitution. I also believe that an evidentiary hearing should be conducted before serial rapist Thomas Duvall is discharged from MSOP. It is wrong for commentators to suggest either that Duvall's discharge makes MSOP constitutional or that his unsuitability for discharge makes the program unconstitutional ("Kicking the can on sex offender release," editorial, Nov. 17).
The courts have concluded that dangerous sex offenders can constitutionally be committed to protect public safety. As the Minnesota Supreme Court held: "Even when treatment is problematic, and it often is, the State's interest in the safety of others is no less legitimate and compelling." The courts recognize that treatment will not necessarily be successful for every patient.
MSOP is a program under which sexual psychopaths and dangerous offenders are civilly committed to a secure facility for treatment. Almost every patient has already served time in prison for sex offenses, and many have committed dozens of acts of sexual violence. In every case, the patient has been determined by a court to have a mental illness, disorder or dysfunction that renders the person highly likely to engage in future acts of harmful sexual conduct. MSOP costs $120,000 per patient/per year.
Out of 700 patients — many of whom are elderly or low functioning — MSOP supports Duvall as one of the first candidates for discharge. I was contacted by one of Duvall's victims after she called an assistant county attorney to question Duvall's fitness for release. She told me that the assistant county attorney disregarded her, told her that Duvall's discharge was a "done deal," and that she had no voice in the matter. What I found when I looked into the situation was troubling.
Duvall has victimized at least 60 — and as many as 100 — girls and women. He has been diagnosed as a sexual sadist with an anti-social personality disorder. He targets teenage girls. Duvall was first imprisoned for raping a 17-year old. Five months after being paroled, he accosted a woman at knife point. Three days after being released from prison, he sexually assaulted a 15-year old girl walking to school. Later that day, he sexually assaulted two girls, ages 14 and 15, threatening one with a shotgun while he raped her. Twelve days after his release to a halfway house, he entered a 17-year-old girl's home the morning after Christmas. Over a three-hour period, he tied her up with an electrical cord, raped her at knife point with a curling iron, smashed her head with a hammer while raping her, and left her for dead. This incident occurred after Duvall's treatment at three different facilities.
Duvall sought discharge last year. Two independent experts were appointed to examine him. Duvall withdrew his petition after the experts concluded he did not meet the criteria for discharge and posed an undue danger to public safety. One expert said that Duvall was likely on track to kill his next victim.
Duvall again petitioned for discharge this year. Neither the county attorney nor MSOP opposed the discharge or had Duvall re-examined by the independent experts prior to deciding not to oppose his release. MSOP claims that Duvall will be discharged to a "secure" halfway house — yet this is the same place where Duvall lived when he previously raped a girl. MSOP argues that Duvall has improved because he now takes psychotropic medication to dull his sexual fixation — but what happens if he stops?
The legal system works best when there is transparency and a full vetting of concerns. Because no one objected to Duvall's discharge or even requested an evidentiary hearing to scrutinize his request, I petitioned the court for an evidentiary hearing. I also requested that the independent experts who last year determined that Duvall should not be released be permitted to examine Duvall and present their opinions to the court. My sole public commentary until this column was filing this court petition.
My request for an evidentiary hearing to determine Duvall's fitness for discharge is entirely consistent with defending the constitutionality of MSOP. While there are issues with MSOP, the program can survive if the commissioner of human services performs her independent statutory responsibilities.
Lori Swanson is attorney general of Minnesota.