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.
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