Should sex offenders still be in custody? Officials say they don't know

In a damaging courtroom sequence this week, top administrators at Minnesota's sex offender treatment program admitted they don't know if men confined for years at high-security treatment centers still deserve to be in custody.

Two high-level directors at the Minnesota Sex Offender Program (MSOP) said the program lacked the staff and money to conduct regular evaluations, and that as a result, the state may be detaining untold numbers of sex offenders who no longer meet the state's legal requirement for confinement.

The surprising admission, in the third week of a landmark federal trial in St. Paul, cast new doubt on whether the state is violating the Constitution by confining sex offenders for indefinite periods after they have already served their prison terms. The trial marks the first serious legal test of the 20-year-old program, which has been criticized for confining too many offenders for too long.

"How can you have a treatment program that doesn't even know which of their clients are ready for release?" asked Roberta Opheim, the state ombudsman for mental health and developmental disabilities.

State lawmakers are already preparing for the possibility that U.S. District Judge Donovan Frank, who is hearing the case, will declare the program unconstitutional and order sweeping changes. This week an influential lawmaker, Sen. Kathy Sheran, DFL-Mankato, introduced legislation that would expand treatment for sex offenders in prisons and establish indeterminate sentences for sex offenses, thereby ending the practice of using MSOP as a back-door method of punishment.

"Why do we have this [civil commitment] system if we can do all we can do in the corrections system?" Sheran said in an interview.

But even as the trial unfolds, officials said, MSOP is taking unprecedented steps to address constitutional concerns by moving detained offenders closer to release.

The state has also signed contracts with more than a dozen outside entities to provide treatment, housing and other services in less-restricted settings than MSOP's secure campuses at St. Peter and Moose Lake.

But critics say the changes aren't enough to address systemwide failures at MSOP. Only three offenders have been provisionally discharged in the program's history, and no offenders have been completely released without supervision. By contrast, Wisconsin has unconditionally discharged 118 offenders from its program, while California has discharged more than 180, according to a court-ordered experts' report.

Asked to explain that gap, MSOP Executive Director Nancy Johnston blamed staff shortages, community fear, layers of bureaucracy and a lack of placement options in the community. "I don't think it's about one thing," Johnston said. "It's multifaceted."

Minnesota stands out among states with sex offender programs; most states, including Wisconsin, require that all offenders be assessed annually to determine if they still meet the criteria for confinement.

In Minnesota, offenders have traditionally received reviews only when they petition for transfer or discharge, which can take years because MSOP is not bound by timetables under state law. Now, however, MSOP has begun assessing the risk level of offenders on a rolling basis, without waiting for them to petition for transfer or discharge.

To speed up the process, MSOP is seeking $2.8 million in Gov. Mark Dayton's budget to hire another 14 forensic psychologists, on top of the eight currently working at MSOP.

"The system is set up so that it's easy to get in, very difficult to get out, and they don't even know who belongs there," Gustafson said.

In scathing testimony, former MSOP Executive Director Dennis Benson said the system is fundamentally broken, largely because too many elected officials have a say over who gets released. Even after MSOP staff supports the provisional discharge of an offender, county attorneys and political appointees could intervene to prevent release, Benson said.

"I don't care how good your treatment is, I don't think the program can work under the current process," said Benson, who resigned as executive director in 2012. "It's politically charged."

Sex offenders, too, have testified in recent days, describing an atmosphere of hopelessness. The program, they argued, uses the same actuarial formulas in gauging risk of recidivism regardless of the offender's treatment history and age. The program's 67 "juvenile-only" offenders, who were committed solely for behavior they committed as adolescents, are measured by the same risk tools as convicted adult rapists and pedophiles.

A number of offenders also said they had no idea how to progress in treatment. Bradley Foster, 44, said he was confined at Moose Lake for six to seven years before he discovered from a fellow resident that he could petition for a reduction in custody by filling out a simple one-page form. "It's really demeaning and sad," Foster said, fighting back tears from the witness stand.

Until such issues are resolved, it is unlikely that MSOP will pass constitutional muster with the judge, said Eric Janus, dean of the William Mitchell College of Law and author of a book on sex offender commitment laws.

"A treatment program that automatically locks people up for their whole lives, without even assessing whether they pose a risk to the public, is not a treatment program," he said. "It's punitive and, by definition, unconstitutional."

The plaintiffs closed their case Thursday, and the state will begin calling witnesses Friday. The trial is scheduled to last through March 27.

Chris Serres • 612-673-4308