The Minnesota Sex Offender Program: Federal Intervention Part 3 – The Ruling

This opinion piece is the third of a three-part series regarding a class-action lawsuit brought by clients of the Minnesota Sex Offender Program (MSOP).   Part 1 discussed some of the issues and concerns that led up to the federal trial.  Part 2 reviewed the 2014 report from a team of experts appointed by the Federal Court to examine the program.  On February 9, 2015, at the US District Courthouse in St. Paul, a federal trial commenced to determine the constitutionality of MSOP. After a five-week bench trial, the Federal Court has issued its ruling in Karsjens v. Jesson.

On June 17, 2015, the US District Court for Minnesota ruled that the Minnesota Sex Offender Program (MSOP), and the underlying sexual offender civil commitment (SOCC) laws in Minnesota are unconstitutional.  Federal Judge Donovan Frank, who has presided over three-and-a-half years of legal proceedings, wrote the ruling.  The decision appears to completely reject the arguments that were put forth by the Attorney General’s Office, which defended MSOP and the state of Minnesota.  Reactions to the ruling were swift.  Governor Mark Dayton immediately issued a statement that he disagreed with the ruling and that the state would continue to defend the constitutionality of MSOP.   Eric Magnuson, former Chief Justice of the Minnesota Supreme Court and Chair of the SOCC Task Force said the decision is not appealable until Judge Frank issues a final order.  Minnesota’s ATSA chapter issued a statement, calling the ruling “fair and necessary.”

Judge Frank’s 76 page ruling is highly critical of both MSOP as a program and the underlying statutes of SOCC, describing them as, “a three-phased treatment system with ‘chutes-and-ladders’-type mechanisms for impeding progression, without periodic review of progress, which has the effect of confinement to the MSOP facilities for life.”  (p.65)  “Although treatment has been made available, the treatment program’s structure has been an institutional failure and there is no meaningful relationship between the treatment program and an end to indefinite detention.” (p.67)

Even former MSOP Executive Director Dennis Benson did not try to defend the system, testifying that, “the politics around the program are really thick… politics guide the thinking process of those involved in the [release] process… this program is going to, I think, eventually be deemed unconstitutional, and in its current form probably should be.” (p.68) 

The reasons for the Federal ruling of “unconstitutional,” on face and as applied, can be summarized into the following areas of concern (from the “Conclusions of Law” p. 50-67):

·         The statutes and the program do not provide for periodic, independent risk assessments to evaluate whether or not an individual continues to meet constitutional criteria for commitment.  Those risk assessments that have been performed have not all been performed in a constitutional manner.  MSOP acknowledged that they do not know which clients meet criteria for commitment or release.

·         The statutes do not provide for judicial bypass – the ability for clients to seek relief from confinement by appealing directly to the courts.

·         The statutes render discharge from MSOP more onerous than the statutory criteria for initial commitment.  There is either no end to treatment, or clients who have completed treatment or sufficiently reduced their risk, remain confined.  Release cannot be predicated on completion of treatment, or readiness to reenter the community, but rather on sufficient reduction of “dangerousness.”  There must be one unifying criteria for commitment and release.

·         The statutes impermissibly transfer the burden to petition for a reduction of custody from the state to the client.  MSOP staff acknowledged that there are many clients who could be safely treated in less restrictive alternatives (LRAs).  MSOP only supports petitioning for clients in the final phase of treatment.  MSOP has failed to assist clients in petitioning, and fails to provide discharge planning to all clients. The statutes do not require the State to take any affirmative action to petition for reduction of custody or discharge on behalf of clients who no longer satisfy criteria for continued commitment.  The petition process can take years.

·         The statutes allow for placement of MSOP clients in less restrictive alternatives, but LRAs are effectively not available for clients.  There are no LRAs upon initial commitment, and few LRA’s for clients who petition for conditional release.  Only two clients are currently on provisional release, and no clients have ever been unconditionally discharged.

A key theme in Judge Frank’s ruling stems more from what MSOP hasn’t done than what it has, “Plaintiffs have shown that each Class Member has been harmed and their liberty has been implicated as a result of Defendants’ actions. For example, Defendants created the MSOP’s treatment program structure, developed the phase progression policies, and had the discretion to conduct periodic risk assessments of each Class Member and to petition on behalf of the Class Members, but have chosen not to do so. By failing to provide the necessary process, Defendants have failed to maintain the program in such a way as to ensure that all Class Members are not unconstitutionally deprived of their right to liberty.” (p.51)

Judge Frank wrote, “Treatment has never been a way out of confinement for committed individuals.” (p.64)  “Contrary to Defendant’s assertion that Plaintiffs allege merely a generalized concern, Plaintiffs have shown that all Class Members have suffered an injury in fact – the loss of liberty in a manner not narrowly tailored to the purpose for commitment.” (p.50)  “The overall failure of the treatment program over so many years is evidence of the punitive effect.” (p.65) “Each of the reasons set forth above are an independent reason for the Court to conclude that section 253D is unconstitutional as applied.” (p.65) 

Going forward, it appears that the standard for commitment, from initial confinement to criteria for release, must be the same (p.73): “It is constitutionally mandated that only individuals who constitute a ‘real, continuing, and serious danger to society’ may continue to be civilly committed to MSOP.” (p.60)  “… discharge must be granted if the individual is either no longer dangerous to the public or no longer suffers from a mental condition requiring treatment.” (p.62)

In the closing pages of Judge Frank’s ruling, he opined that Minnesota’s SOCC system is flawed for essentially two distinct, but interconnected reasons: (1) that society is frustrated with our inability to effectively mitigate crime broadly and sexual violence specifically, with sexual offenders being the target of “society’s opprobrium,” and (2) the blurry relationship with our criminal justice system.   Judge Frank concluded, “Consequently, the Court observes that, in light of the current state of Minnesota’s sex offender civil commitment scheme, it is not only the ‘moral credibility of the criminal justice system,’ that is at stake today, but the credibility of the entire system, including all stakeholders that work within the system, and those affected by the system, not forgetting those who have been convicted of crimes, their victims, and the families of both.” (p.68-72)

Eric Janus, William Mitchell College of Law President and Dean, has been a longtime critic of SOCC, and has described the federal ruling as a “sweeping condemnation” of sexual offender civil commitment in Minnesota.  Professor Janus has warned for more than two decades that SOCC is deceptively enticing, deeply flawed public policy, and constitutionally tenuous.  The federal courts have warned for two-decades that if SOCC becomes de facto preventive detention, they will intervene – and they did.

What’s Next?

Judge Frank has exercised judicial restraint for more than three years, but wrote in his powerful ruling, “As the Court has stated in a number of previous orders, and will now say one last time, the time is now for all of the stakeholders in the criminal justice system and civil commitment system to come together and develop policies and pass laws…” (p.74)

Judge Frank concluded his ruling with a request for top political leaders of Minnesota, and other stakeholders, to come together to discuss solutions at a “Remedies Phase Pre-hearing Conference” at the US District Courthouse in St. Paul, on August 10, 2015.  Judge Frank acknowledged that he cannot compel political leaders to attend, and given that one invitee, Governor Dayton, has said the state will defend the constitutionality of MSOP, it’s too soon to know if the Executive branch is planning to appeal or ready to engage in “remedies.”  Perhaps, after 20 years of complacency within state government, the state isn’t taking it seriously when the Federal Court says, “Recognizing that the MSOP system is unconstitutional, there may well be changes that could be made immediately, short of ordering the closure of the facilities…” (p.4) 

Perhaps it is too soon to know the reach of this federal ruling, but there are ramifications, for example, for a similar, concurrent federal lawsuit in Missouri.  Interestingly, Minnesota and Missouri are both in the Eighth Circuit of the US Court of Appeals, which means that an appeal from either or both states would be heard by the same Court.  While Judge Frank’s ruling is binding in Minnesota, a Federal Appeals Court ruling would be binding within the Circuit, and a federal court ruling in any part of the US can be influential across the country.  Undoubtedly, SOCC programs in all 20 states are taking note of this ruling, and the 30 states that don’t have SOCC might be thinking twice about going down that road. 

When a Federal Court drops the judicial “nuclear bomb” of “unconstitutional” on laws within the US, it is not just a legal opinion, it should be seen as a wake-up call that we have gone astray of “our constitution” – a set of human values that are so bedrock to a civilized society, and humanity, that we have enshrined those principles in the US Constitution - to be certain that they guide the formation of all laws and public policies, especially when causes, and people, are unpopular.

In recent years, many of our colleagues in the broadly related fields of psychology, social work, criminal justice, and mental health have also been deeply concerned about the troubling legal and ethical underpinnings of SOCC.  It is easy to forget that practicing mental health at its junction with the legal system can be an ethical minefield.

Many of our “civil laws” in the US, regarding the management of those who have sexually offended, from the sex offender registry, to residency restrictions, to SOCC, are not well grounded in science or research.  While recognizing, with great respect, all the professionals working at or near the front lines of SOCC treatment programs, perhaps Judge Frank’s ruling is also a reminder for all who work in SOCC to examine our individual professional roles in supporting a system that most knew was broken, long before it was “unconstitutional.” It is tempting to engage in unproductive finger pointing or think that the Minnesota experience can’t happen elsewhere.  Colleagues would be wise to study the events in Minnesota in order to understand what happened, and develop innovative ways of preventing similar occurrences elsewhere.  If we are going to use SOCC, we should do it in the most effective and ethical ways possible.

This is the beginning of a new era for MSOP and sexual offender civil commitment in Minnesota. We might start by being honest about whether we see sex offenders as “broken” or just “evil,” and whether we are going to offer veritable treatment, or just be really mad at them.  Judge Frank’s ruling explains that there are constitutional safeguards in the criminal justice system that do not exist in the civil commitment system, and that we should be mindful of that in forging solutions.  If we replace endless SOCC with endless prison sentences, it might be a lot more constitutional and a lot less just.  If stakeholders can avoid getting hijacked by anger, fear, or vengeance; and considerate new laws emanate from sound research, best practices, and constitutional principles, we can reform MSOP into a model program for SOCC, and show Minnesota, the Federal Courts, and the rest of the world that we can offer sincere hope and effective rehabilitation to people who were once thought to be evil or irreparably broken, and return them safely back to their communities and to their families.    

Jon Brandt, MSW, LICSW

David Prescott, LICSW

Readers might be interested in two excellent collections of essays on MSOP and SOCC.  One is titled “Civil Commitment and Civil Liberties” published in June, 2015 by the Cato Institute.  And another is the Spring, 2015 edition of the William Mitchell Law Review.

Implementation, Integration, and “Implegration”: Science and Practice

Many years ago, I had a bad experience with a consultant. She promulgated an evidence-based treatment curriculum for a specific condition that my programs treat. The curriculum was excellent; the consultant was not. She complained bitterly to others when cases were not improving rapidly, and blamed some therapists even as she attempted to hire others away from our employ. At no time did she critically examine her own contribution to these circumstances. Good treatment with bad implementation does not produce a good outcome for anyone.

Central to our implementation problems was that our therapists needed time to get their minds around the specific treatment processes. Unfortunately, she and the funders were not patient. This was before I became aware of Dean Fixsen’s research on implementation efforts. He would argue that it takes two years to implement a treatment program with fidelity. In our case, this meant a good curriculum, good therapists, but poor consideration of implementation science.

Fast forward a few years and I have twice consulted to agencies this week on implementing treatments such as the good lives model and motivational interviewing. As you might expect, time is tight and money is short. From an administrator’s perspective, it always seems like a good idea at the time: “there is a good new treatment method out there; let’s get someone in to do training.” What often gets lost in the mix are some of the basics. For example, with every rollout of a new treatment method there is a minority of people who readily embrace change and another minority who wants nothing to do with it. One example of this took the form of “we’ve seen these new models come and go over the years. This one will probably go away as well.”

Even the greatest attempts at improving services meet with challenges along the way. An important consideration lies in how we can prevent implementation problems before they happen. Professionals sometimes do not want to change their behavior any more than mandated clients do.

Perhaps one place to start is in considering how best to get the program’s context right for change. Are we considering full implementation of a specific approach such as motivational interviewing or the good lives model? To do so with fidelity can mean even more effort in curtailing old approaches than in learning new ones. It can also mean stopping a program in its tracks and changing course, which can result in as much or more tumult for the clients as the program staff.

On the other hand, one might try integrating program components piecemeal. For example, one might try to go in a good-lives-model direction through a series of steps:

1)      Ensuring that the mission of the program is to build client capacities and wellbeing even as clients manage risks

2)      Focusing on developing goals that every client can approach rather than avoid

3)      Developing a deep understanding of each client’s common life goals

4)      Collaborative work with clients to understand their past behavior in accordance with the self-regulation model

5)      Consider full implementation of the good lives model

Another possible approach is to consider “Implegration.” This is a term coined by Swedish prison psychologist Carl Åke Farbring and refers to an integrated implementation effort (see here for a series of presentations in English and Swedish). Farbring came to conclude that simple efforts at motivational interviewing implementation were doomed to be less effective when they did not take place in the cultural context of the program. From his notes, he describes Implegration as involving:

• An intentional process of implementation
• Bottom-up perspective
• An attitude of exploring and listening
• Local ownership of processes (separate from the centrally decided goal orientation)
• Balance between guidelines and mindlines
• Adjusting to local conditions means deliberate integration
• Positive monitoring and support

When considering the implementation of a treatment approach, it is often easy to overlook the potential contribution of local expertise. This can be achieved as simply as through the appointment of in-house experts who consult to both the model’s developer and the front-line clinicians. It can also use in-house relationships, such as having an enthusiastic front-liner organize regular discussions about how implementation is progressing.

For many years, it seemed acceptable to view clinicians as widgets in the service of sophisticated treatment regimens established by experts who were too often in another region. Recent research has confirmed the importance of improving treatment services one client at a time through close attention to the alliance. As our field continues its discussion of best treatment practices, it also seems vital to consider how we make these practices happen.

David S. Prescott, LICSW

The prevention of sexual abuse and violence in the UK

 Over the last four decades in the UK, survivors of sexual abuse and the women’s movement brought growing recognition of sexual abuse and sexual violence. For the purposes of this blog sexual abuse refers to the abuse of children and young people and sexual violence is a broader umbrella term which also includes sexual assaults against adults.  

During the 1980s small, mainly voluntary sector organisations began to provide help, support and treatment for victims and survivors of sexual violence.  Also during this time, many of the same organizations began to recognize the need to work with the source of the problem, the person causing the sexual harm. The Probation Service began to deliver relatively small scale individual and group work to  convicted sex offenders.

With a developing interest in “What Works” in treatment and rehabilitation, there was a growing  investment in treatment programmes for offenders that were subject to quite rigorous evaluations. Accredited sex offender programmes were developed and by the first decade of the 21^st century and a growing body of research began to articulate the components of  effective assessment and treatment for those who sexually harmed children and/or adults.

This development in knowledge and resources was not matched in work with victims, with children and young people with harmful sexual behaviour and even less focus on  primary prevention. And this in the main remains the case today.  It seems that this is primarily due to the political attractiveness of being seen to address a “threat”(e.g., adult sex offenders) rather than the sometimes complex steps to prevent sexual violence from happening in the first place.

More recently high profile cases of historic abuse (Savile -  http://www.bbc.co.uk/news/uk-20026910, Hall - http://www.bbc.co.uk/news/uk-england-manchester-22942439 and others), child  sexual exploitation,  and an increased focus towards online abuse, combined with growing fiscal constraints have led policy makers to become more interested in primary prevention. Work by the NSPCC[1] has shown that the sexual abuse of children costs the UK economy over £3 billion (approximately $4.5 billion) a year. Government is beginning to understand and recognise that sexual abuse and violence is best understood as a public health problem. To the UK we now have a growing interest in prevention and real opportunities to evaluate what works, particularly in relation to primary prevention.

Two members of NOTA (who are also members of ATSA and on ATSA’s Prevention Committee) have taken the lead to  establish a prevention committee within NOTA.  The newly formed committee Is currently exploring how to best identify; promote and disseminate good and promising prevention practice, particularly in relation to primary prevention. The NOTA Prevention Committee works from the standpoint that there is much to be learned and adapted from other successful public health campaigns and initiatives. The main aims of the committee are:

·         To contribute to the development of awareness raising and practices to prevent  sexual  violence against children and adults in the UK and Ireland

·         To focus on all aspects of the prevention of sexual abuse and violence against children and adults and to have a particular focus on primary and secondary prevention 

·         To develop an annual, costed work plan

·         To develop a common understanding of what constitutes prevention is in the context of sexual violence

·         To oversee and drive the development of the Prevention Matters online forum

·         To develop policy positions

·         To facilitate links to other prevention activity in national or local governments or other organisations  

The NOTA Prevention Committee has already begun to meet and plans to address the goals above throughout the year.  And to help increase communications across the Atlantic, NOTA has invited ATSA prevention committee members to join the NOTA meetings.  From these collaborations, we expect to see some excellent opportunities to address this issue before it is a large institutional issue. 

One example of ATSA and NOTA working together is the community engagement events in San Diego (ATSA conference 2014), McCartan who organized the first event, is now coordinating events in Bristol UK and Dublin Ireland.  These events can help improve public understanding about sexual abuse and violence and articulate what can be done to prevent it.

The growth of these initiatives and the growing public attention to the issue of sexual violence, there are many new opportunities opening up with the possibility of having a significant impact in communities on both sides of the Atlantic. 

Jon Brown, M.Sc. , (NSPCC & Chair of the NOTA Prevention Committee)

Kieran McCartan PhD (NOTA Prevention Committee member)                   

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[1] NSPCC (2014) Estimating the costs of child sexual abuse in the UK