Attorneys for the state of Minnesota have signaled that they intend to appeal a federal judge’s ruling that declared the Minnesota Sex Offender Program unconstitutional and in need of systemic reform.

Citing public safety concerns, the state attorney general’s office requested in a letter that U.S. District Judge Donovan Frank amend his order to allow for “an immediate right to appeal.” The letter, made public Thursday, is a clear signal that the administration of Gov. Mark Dayton intends to resist fundamental reforms to a sex offender program that Frank denounced in a Wednesday ruling.

An appeal could mean several months of delay, or more, for a series of changes suggested by Frank and endorsed by some state legislators. These include requiring the state to conduct regular assessments proving that the 700 men detained at secure treatment centers in Moose Lake and St. Peter are still dangerous enough to meet the legal standard for confinement, and to develop less-restrictive treatment alternatives in the community.

“Given the importance of the case and safety and security concerns both at the facilities and to the public, I advocated on behalf of [the state] that there be clarity and finality in the court’s order providing defendants with an immediate right to appeal,” wrote Deputy Attorney General Nathan Brennaman in a June 16 letter to Frank filed with the court.

Frank’s order, as currently written, does not clear Minnesota to appeal to a higher court, because no final judgment had been rendered on key counts against the state. Frank has asked state officials to “fashion suitable remedies” for an Aug. 10 hearing at his courtroom.

Both Dayton and Human Services Commissioner Lucinda Jesson said Wednesday they opposed the ruling and vowed to defend the program’s constitutionality.

“The governor absolutely supports an appeal,” said the governor’s spokesman, Matt Swenson.

The state has made incremental changes to the program in recent years, such as moving more offenders to the final phase of treatment and contracting with outside agencies that could provide housing and treatment for offenders released into the community. However, the state has resisted the sort of systemic reforms sought by Frank, who criticized the program’s punitive nature and low rate of release.

Some observers questioned the wisdom of appealing a decision that condemned the state program so decidedly. By forestalling reform, the Dayton administration is increasing the likelihood that Frank will impose changes without consulting elected lawmakers, say legal scholars. Frank could require independent reviews of every offender and order the release of certain offenders if he deems their constitutional rights are being violated.

Mass release possible

Such an outcome would not be unprecedented. In 2013, a federal court in California ordered the release of nearly 10,000 prison inmates after the state ignored the court’s repeated calls to solve severe prison overcrowding.

“If we don’t do anything to solve this problem, there will be a mass release — and that will be on the backs of the politicians,” said Ryan Magnus, a Mankato defense attorney who has represented more than 100 offenders in the treatment program. “We would be better off dealing with the issue head-on.”

During a six-week trial early this year, state officials admitted they may be detaining untold numbers of sex offenders who no longer meet the statutory requirement for confinement. As Frank pointed out in his order, the state is not currently required to conduct periodic risk assessments after an offender is committed.

Only three offenders have been conditionally discharged in the program’s 20-year history, and no offender has been released without conditions.

Sen. Kathy Sheran, DFL-Mankato, said she “did not understand” why the administration would appeal a ruling that was so clearly against the state. “I don’t agree with inaction,” said Sheran, who this year introduced legislation that would have required biennial reviews of offenders’ cases, among other reforms.

“Once it is clearly determined that what we are doing is unconstitutional, then we must act,” Sheran said. “Because if we don’t, then we will be held accountable for stepping on people’s constitutional rights.”


Twitter: @chrisserres