This month a federal judge may issue a long-awaited ruling on the constitutionality of the Minnesota Sex Offender Program. Along with national controversies over vast government surveillance programs, MSOP’s troubles raise a basic question that we should occasionally challenge ourselves to answer:
Why should Americans respect constitutional rights that get in the way of government keeping us safe?
First, some background, courtesy of Gov. Mark Dayton:
Two months ago, Dayton released a remarkable document — a letter to Department of Human Services Commissioner Lucinda Jesson that told the MSOP story with almost embarrassing candor.
“[F]or many years,” the governor wrote, Minnesota “has kept its most serious criminal sexual offenders locked away with virtually no chance of release.” And like “most Minnesotans,” Dayton added, he is just fine with that.
“As Governor, however,” he went on, almost with a note of regret, “I am responsible to carry out the laws … .” And the laws, he explained, say that offenders are eligible for release once they have served the prison sentences required at the time of their convictions — even under the “weaker laws” that applied to sex offenders years ago.
“Until now,” wrote Dayton, “the State’s tactic to avoid releasing … offenders after they had served their criminal sentences has been to commit them to a ‘treatment program’ … . In practice … these civil commitments have turned into virtual life sentences.”
MSOP is the “treatment program” — those quotation marks, by the way, are the governor’s — that is really just a tactic to impose retroactive life sentences on people who have served their time. After repeating that he rather prefers this arrangement, Dayton acknowledged that “this method of locking people away for life” might be found “unconstitutional.” This would put him, Jesson and the current Legislature “in the position of having to do what previous [state leaders] have avoided …”
Like their duty, for instance?
But there’s no sense rushing into anything. Noting that Jesson had “courageously begun to implement the current … laws” — actually allowing a few MSOP patients to move toward closely monitored provisional release (as other states do with offenders like these) — and after adding that he has “great confidence” in her judgment and processes — Dayton then ordered Jesson to call the whole thing off and for the time being “oppose any further [release] petitions …”
Why? Because of “political grandstanding” and “gamesmanship” in the wake of news reports about one of the proposed releases. (Several 2014 candidates for governor and the state’s attorney general had publicly condemned the proposed release.)
Dayton’s letter could be Exhibit A for the unconstitutionality of MSOP. To review: The governor of Minnesota orders his administration to drop its new, experimental efforts to actually “implement the laws” governing MSOP releases — which, in case you missed it, the governor doesn’t like anyway — and to do so expressly because the political heat is on.
Dayton is right, of course, that none of this is new; this isn’t really about him. On MSOP, Minnesota politicians have displayed bipartisan grandstanding, gamesmanship and gutlessness for 20 years. That’s how the state has come to have, per capita, the largest “treatment program” of this kind in the country (with about 700 clients at a cost of $120,000 per head, per year).
The question for Judge Donovan Frank is whether this state of affairs can possibly suffice as the due process of law guaranteed under the U.S. Constitution.
If so, we had better start calling it “due process.”
But why should we care about the constitutional rights of MSOP inmates, who truly are frightening?
The first reason is that if America doesn’t stand for the rule of law — and for equal legal rights for everyone — then it simply doesn’t stand for anything. Or at least it stands for nothing more inspiring than the world’s best shopping.
If such an appeal to principle and civic dogma has lost influence, we may face a different kind of danger. The practical reason to respect constitutional rights — even when, like the governor, we’d really rather not — is apparently hard for many modern Americans to take seriously. Constitutional boundaries have weathered enough storms in our history (albeit not without breakdowns) that the threat of tyranny now seems far away and unreal.
But “enlightened statesmen will not always be at the helm,” as James Madison warned in the Federalist Papers.
The power of “locking people away for life” is a fearsome thing that must itself be kept in a strong cage built of law and procedure. There is no guarantee that everyone who comes to wield that power will be well-intentioned, much less courageous in the face of the extreme political pressures that can arise from extreme circumstances.
This is where the issues surrounding MSOP bear a resemblance to the controversy over the federal government’s secretive surveillance regime in the war on terror. That too is awesome power that in the wrong hands could be a tool for despotism.
Mark Dayton is no tyrant. Neither is Barack Obama. Neither was George W. Bush. But America’s founders deliberately designed a government that contains no unchecked discretion that could be readily abused should a would-be tyrant ever actually appear at the helm. We should keep it that way.
D.J. Tice is at Doug.Tice@startribune.com.