Gov. Mark Dayton spelled out a costly set of changes to Minnesota's troubled sex offender treatment system on Monday, proposing new community facilities and closer evaluations in an attempt to satisfy a federal judge who says the program is unconstitutional and in need of an overhaul.
Dayton and legislative leaders were called to appear in U.S. District Judge Donovan Frank's court Monday morning for a closed-door hearing designed to hash out a political solution to a thorny legal problem.
Frank has made it clear that he wants legislators to act instead of punting to him on what to do with serious sex offenders who have served their sentence, but are being held in perpetual confinement in a treatment program that boasts few successes.
Dayton insists the program is constitutional. His changes are designed to modify the program, rather than obliterate it.
"We think there are ways that the program can be improved, and I'm prepared to take those steps with the concurrence of the Legislature," Dayton said after the meeting.
His proposal, which would need legislative approval, would spend up to $15 million a year for new, supervised community facilities for sex offenders. Another $7 million would be used to perform biennial evaluations of the hundreds of rapists, pedophiles and other offenders now detained indefinitely, to see if they still meet the criteria for confinement. Dayton did not identify possible locations for the new centers.
Dayton also said he and Attorney General Lori Swanson intend to appeal Frank's June ruling, a move that could delay reforms for at least another year.
The DFL governor's unusual approach — suggesting major changes to the sex offender program even as he disputes Frank's findings — demonstrates the dilemma facing the governor and legislators. With all 201 legislators on next year's ballot, it could be difficult to build political support for high-profile legislation that gives even the appearance of less-restrictive treatment of sex offenders — particularly if specific communities are identified as sites for new facilities.
Whatever support Dayton could build for his proposed remedies may still not be enough to satisfy Frank, who has urged far deeper reforms.
With secure facilities in Moose Lake and St. Peter, the Minnesota Sex Offender Program holds about 700 convicted sex offenders, most of whom have completed their prison sentences but still are considered too dangerous for public release.
In a ruling early last year, Frank called the program "clearly broken" and "draconian."
The purpose of Monday's meeting, which Frank closed to the public and news media, was to see if political leaders could concur about what steps could be taken to repair it. The discussions were not successful, and several participants including Dayton said Frank indicated he would issue another ruling before the end of the year laying out next steps.
Legal experts said they expect that ruling would be broad in scope, with specific goals for reducing the number of people detained as well as strict timetables for releasing them.
"Unless something miraculous happens in the next few months to bring policymakers together, I would expect a broad order from the court instructing the state about what changes are necessary," said Eric Janus, a William Mitchell law professor and expert on sex offender laws.
Dayton said, based on comments Frank made during the hearing, that he did not believe that would include the immediate release of sex offenders into the community. Participants said much of the meeting involved discussions about potentially less-restrictive settings for certain populations of detainees: juveniles, those with disabilities and the elderly. Dayton said the less-restrictive facilities would focus on lower-risk patients, including those with cognitive disabilities or who require nursing-home care.
Some participating legislators Monday made clear they would continue to resist major changes.
"In my district, there's no appetite for this whatsoever," said Rep. Tony Cornish, R-Good Thunder. He said there's "huge pushback" among his constituents whenever a Level 3 sex offender is released in one of their communities.
Legislators are not scheduled to meet in regular session until next March, and Dayton said a special session might be necessary to adopt changes. Whether that comes to pass may depend on legal wrangling: After Frank issues his next order, Dayton and Swanson will be able to go ahead with their appeal. If Frank or another judge stays the ruling while the appeal proceeds, that could give politicians cover to postpone decisions about the program's future for many more months.
"I assume the appeals process will take some time," said House Speaker Kurt Daudt, R-Crown, who said he also believes the current program is constitutional. "I don't look for a special session any time soon on this issue."
Senate Majority Leader Tom Bakk, DFL-Cook, said legislators shouldn't stall. In 2013, the Senate on a bipartisan basis voted for changes to the program aimed at addressing many of the problems now highlighted in Frank's ruling. Bakk said he's worried that if it lingers into next year, it would mushroom into a divisive campaign issue.
In his June ruling declaring the program unconstitutional, Frank outlined more than a dozen proposed reforms. These include requiring the state to conduct periodic, independent "risk assessments" to determine whether sex offenders held in the program still meet the legal criteria for confinement; the creation of less-restrictive community treatment options for sex offenders, and shifting the burden to the state to prove that sex offenders meet the statute requirement for confinement.
Since the program's inception in 1994, no offender has ever been unconditionally discharged, and only three have been provisionally discharged. At an annual cost of about $120,000 per detainee, Minnesota civilly commits more sex offenders per capita than any other state.
Dayton said the stakes are high for those who must make decisions about the program's future.
"I don't ever want to look a spouse or parent in the eye and say that, because of actions that were taken, that person's family member was subjected to the kind of atrocities that we've seen on the record for individuals that are in this program," he said.