Fate of MSOP Now Rests With the Supreme Court

In June, 2015, the US District Court for Minnesota determined that the 700+ clients at the Minnesota Sex Offender Program were being unconstitutionally confined.  In January, 2017, the US Court of Appeals for the Eighth Circuit said they’re not.   What explains the conflicting opinions?   A three-judge Appeals Panel said District Court Judge Donovan Frank did not apply the proper standard: to be unconstitutional, civil rights violations for SVPs must “shock the conscience.”  What’s wrong with the “shocks the conscience” standard?  If, until the Supreme Court intervened in 2008, executing sex offenders in the US didn’t “shock the conscience,” how can any lower court know where that bar is?

A Brief Recap. In December, 2011, 14 clients who had been civilly committed and incarcerated at MSOP, some for more than 20 years, filed a civil rights lawsuit in the US District Court for Minnesota.  The Federal Court determined the petition had merit, gave it class status, and from 2012 to 2015, Judge Frank carefully reviewed the sexual offender civil commitment (SOCC) scheme in Minnesota, examined MSOP (effectively, SOCC as applied), considered multiple independent reports, ordered the State to create a task force to make recommendations, appointed four (ATSA) experts to advise the Court, implored Minnesota political leadership to correct course, held a six-week evidentiary trial, and considered all the evidence before issuing his well-reasoned ruling.  Judge Frank found the SOCC Act in Minnesota unconstitutional for six reasons, and MSOP unconstitutional for six related reasons.  The State appealed to the Eighth Circuit.

The State Appealed.  In Appeal briefs, the State argued that plaintiffs failed to identify any specific clients who were improperly confined.   Attorneys for clients countered that the State doesn’t know which clients at MSOP currently meet criteria for confinement.  The State alleged judicial bias.  The Eighth Circuit said Judge Frank had not acted improperly.  The State raised three challenges to jurisdiction.  The Eighth Circuit rejected all of them.  The State argued that the District Court erred in applying the ‘strict scrutiny’ standard to the SOCC scheme in Minnesota, which therefore requires SOCC to be “narrowly tailored to achieve a compelling governmental interest.”  Therein lies the Eighth Circuit’s reversal.

The Eighth Circuit said that ‘strict scrutiny’ and ‘narrowly tailored’ is the standard “reserved for claims of infringement on ‘fundamental’ liberty interests...” but that the US Supreme Court (SCOTUS) “has never declared that persons who pose a significant danger to themselves or others possess a fundamental liberty interest in freedom from physical restraint,” and that therefore the proper standard is whether SOCC “bears a rational relationship to a legitimate government purpose.”  With deference to legislative intent and a state’s responsibility for public safety, the Eighth Circuit reversed all six of Judge Frank’s unconstitutional determinations related to Minnesota’s SOCC scheme.

The Eighth Circuit went on to examine how the State has implemented SOCC.   The Appellate Court held that the District Court should have determined whether actions violated a fundamental liberty interest AND whether those actions “shock the conscience:” actions by the State that were “egregious or outrageous,” or “inspired by malice or sadism rather than merely careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse of official power literally shocking to the conscience.”

  

In applying the “shocks the conscience” standard, the Court held that those attacking the implementation of SOCC laws have the burden to “negate every conceivable basis which might support it.”     The Appellate Court acknowledged that Minnesota State law entitles SVP clients to “competent medical care and treatment,” but that SCOTUS has not recognized “a broader due process right to appropriate or effective or reasonable treatment…” And finally, the Eighth Circuit reversed Judge Frank’s six remaining unconstitutional findings regarding SOCC “as applied,” saying those findings were really just “a criticism of the statutory scheme itself.”

 

Reconsideration.  As the last recourse before an appeal to SCOTUS, on January 31, 2017, the attorneys representing MSOP clients filed an “en banc” petition – a request for the full Eighth Circuit to reconsider the three-judge panel’s ruling.  Last week, without comment, the US Court of Appeals denied the plaintiffs’ petition for review.

Commentary.  After more than 20 years and about 750 clients, two clients have been unconditionally released by the Courts (over the objections of MSOP staff), and no clients have gained full discharge by completion of treatment.  Since the commencement of this federal lawsuit, about a half-dozen clients have been provisionally released from MSOP, but effectively that means endless treatment is replaced by endless supervision.

Judge Frank expressed concern that, if not for this federal lawsuit, clients would languish at MSOP and wrote that “there is no meaningful relationship between the treatment program and an end to indefinite detention.”  The Eighth Circuit said that doesn’t matter - as long as clients were once judicially determined to be dangerous, and there are vehicles for redress, they can be confined indefinitely.  What if vehicles for redress are inadequate or a pretense for relief?  Does it seem disingenuous that the State can confine citizens indefinitely for treatment, and simultaneously argue that there is no constitutional right to treatment?  The Appellate Court went further, stating that the Constitution does not prevent “a State from civilly detaining those for whom no treatment is available.”  What if treatment is available, but no one can complete it?

Apparently, it isn’t troubling to the Eighth Circuit that the bar for release from MSOP is higher than the threshold into SOCC?  Or that the State agrees there are numerous clients at MSOP who don’t need secure confinement, and less restrictive alternatives are virtually non-existent.  It seems the Eighth Circuit is not concerned that for several years, two consecutive governors used executive orders to summarily deny any releases from MSOP.  Perhaps what is most troubling about the Eighth Circuit ruling is the degree to which the Court reasoned that bedrock civil rights are relative, not absolute.  Freedom from confinement is not a “fundamental liberty interest?”  Violations of civil rights for SVPs are only unconstitutional if such deprivations “shock the conscience?” When it comes to what the State can do to control ‘sex offenders,’ is it likely that there is any government action, in the public’s mind, that would “shock the conscience?”

 

Long before this federal lawsuit, law professor Rosalie Berger Levinson wrote that it is Time to Bury the Shocks the Conscience Test. The Minneapolis Star Tribune editorial board wrote, “This chilling legal principle could one day threaten liberties far beyond those of the 721 people in the Minnesota Sex Offender Program.”  In an op-ed piece about the ruling, Harvard Law Professor Noah Feldman wrote, “The Eighth Circuit panel’s decision is wrong,” pointing to a SCOTUS opinion by Justice Byron White that “freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.”  Feldman noted that the specific liberty at stake was the “liberty interest under the Constitution in being freed from indefinite confinement in a mental facility.” 

States have an essential right and responsibility for public safety, but they also have a responsibility to protect civil rights for all citizens.  SVP programs have a dubious history, including human rights violations, pushing the limits of forensic psychology, a high tolerance for false positives, and inherent ethical dilemmas.   Perhaps most disconcerting, is the extent to which ‘sex offenders’ are becoming alienated from constitutional rights.  Driving the bus is a false presumption of dangerousness, the marginalization of sound research, and broad public support for sex offender banishment.

The Eighth Circuit ruled that SOCC in Minnesota is “facially constitutional because it is rationally related to Minnesota’s legitimate interests.”  By reversing Judge Frank’s highly principled ruling, the Eighth Circuit effectively held that it’s not a problem that the exits from MSOP are unabashedly blocked, even if the reasons are incontrovertibly political.  The Appellate Court wrote repeatedly in their opinion that the Supreme Court has not provided guidance on many of issues facing SOCC, and then simply ruled on the side of state’s rights.  In doing so, the Eighth Circuit ratified SVPs as a subclass of US citizens whose constitutional rights are far short of even prison inmates.

 

What’s Next?  Attorneys representing MSOP clients have 90 days to appeal to the US Supreme Court.  Even if the appeal is accepted, it might end up being just the latest in a long series of SCOTUS rulings that, through the selective application of empirical evidence, have downgraded the civil rights of Americans who have sexually offended.  But there is a reason to be hopeful – MSOP clients and other SVPs who are truly in recovery might have an ally at the Supreme Court.  Justice Anthony Kennedy was the swing vote in the 5-4 SCOTUS decision that upheld SOCC in 1997.  While Justice Kennedy, in his concurring opinion in Kansas v. Hendricks, agreed to SOCC in concept, he signaled that the judiciary must ensure SOCC, in practice, does not violate constitutional principles.  If the Supreme Court accepts the appeal, Judge Frank might be vindicated, a SCOTUS ruling would provide new guidance to SVP laws in the US, and MSOP clients may have a legitimate vehicle to gain release from SOCC.  Once again, only the courts stand between civil rights and government wrongs, and not all judges are created equal.

“…the Framers presciently recognized that two of the three co-equal branches of government were representative in nature and necessarily would be guided by self-interest and the pull of popular opinion.  If we in the judiciary do not have the authority, indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.”

Judge Martha Craig Daughtrey,

US Court of Appeals for the Sixth Circuit

Jon Brandt, MSW, LICSW

Special thanks to Eric Janus, Mitchell Hamline law professor, for guidance in understanding the Eighth Circuit appeal.  

Investing in people…….

This may not be the sexiest or most appealing sounding blog, but it reminds us of an important point that impacts all of us in our day to day working – workforce development. We would do well to remember that we work in a field were accountability is central, risk management is the name of the game and knowledge is power. We as professionals, practitioners and policy makers need to consistently keep abreast of developments in the field.

Kieran was sitting in a department meeting the other day were we discussed staff workload, programmes and recruitment for the 2017/18 academic year. The meeting focused round the undergraduate provision mainly but we did talk about postgrad teaching, PhD’s, Continual Professional Development (CPD), partnership working, student placements, match funded PhD’s and external training; it made me think about workforce development, which is something that myself and David find ourselves discussing a lot, and what this means for professionals, practitioners and the sexual abuse field in general.

Currently, there is not always enough money in organisations to send their staff to the conferences that they need to, or want to attend. This lack of investment in workforce development becomes more evident when discussing attendance at training events, short courses and qualifications. We remember when business and organisations would pay for members of staff to do MSc/MA or PhD’s as part of work force development; those days are mainly gone now.

Kieran organises a lot of sex offender conferences through the university, the majority of which have been internally funded or funded by research councils (ESRC & Leverhulme trust are two examples), and are in the process of starting to organise a conference that participants have to pay to attend; this has been an interesting experience. What will organisations pay for the training that their staff will be getting? What do they expect for their money? How much of a say do they want in the discussion around content and delivery? In the end they may not charge and find another way to fund it. That may be okay in this instance, but it begs the question of how do staff upskill, become more knowledgeable, and become aware of new research/development in the area. Further, whose responsibility is it to make this possible? This is particularly salient if you work in an area that requires you to have professional accreditation, which psychology, counselling, the legal system and social work (all areas that those that world in child protection and sex offender management tend to come from) do.

An alternative argument that we often hear to training and conferences is that professionals should read more journals, books and literature from their area of work. They should set aside time to develop their own skills base. While we don’t disagree with this, I think that there is more to this than meets the eye. Yes, professionals and practitioners can always read more but there are issues associated with this. For instance, (1) how do they access the articles as many professionals in the field do not have access to a vast array of journals; (2) what articles and authors should they read to diversify their knowledge base to make sure that they are not just reading the industry standard [regardless of how good they are]; (3) who pays for the licences, them or their employer?;  (4) how do they know what they should be reading, by who and when;  and (5) what are they reading for and how do they reintegrate it back into their own/their organisations practice. All of this gets compounded by the fact that most academics publish in pay for journals and books, open access publishing has not reached the mass market yet and those open access publications and not necessarily the ones that academics are encouraged to publish in. I am not criticising either model, both have their pros and cons (currently Kieran sits as an editorial board member and an Associate Editor on two journals with David being an editorial board member on three journals) but it does highlight the fact that professionals and non-academics may not have access to the papers that they need to upskill themselves.

We do not think that sending people on courses and paying for CPD is the only response available to the question of staff development, there are examples of good practice within professional organisations including, article clubs, research Q & A, partnership with academic institutions nearby, support in supervision and annual staff development rounds. What we are  saying is that maybe we need to think differently about how we invest in the development of professional staff in the field so that they have access to resources, training and discussion; so that they can be as up to date and as able to help their clients as possible.

Kieran McCartan, PhD, & David Prescott, LISCW

Q & A with Chantal Hermann entitled "Implicit and Explicit Evaluations of Sexual Aggression Predict Subsequent Sexually Aggressive Behavior in a Sample of Community Men"

Hermann, C. A., & Nunes, K. L. (2016). Implicit and Explicit Evaluations of Sexual Aggression Predict Subsequent Sexually Aggressive Behavior in a Sample of Community Men. Sexual Abuse: A Journal of Research and Treatment.

http://journals.sagepub.com/doi/abs/10.1177/1079063216682952?ai=1gvoi&mi=3ricys&af=R

The current longitudinal study explored the extent to which implicit and explicit evaluations of sexual aggression predict subsequent sexually aggressive behavior. Participants (248 community men recruited online) completed measures of implicit and explicit evaluations and self-reported sexually aggressive behavior at two time points, approximately 4 months apart. Implicit and explicit evaluations of sexual aggression at Wave 1 had small significant and independent predictive relationships with sexually aggressive behavior at Wave 2, while controlling for sexually aggressive behavior at Wave 1. This is the first study to test whether implicit and explicit evaluations predict subsequent sexually aggressive behavior. Our findings are consistent with the possibility that both implicit and explicit evaluations may be relevant for understanding and preventing subsequent sexually aggressive behavior. If these findings can be replicated, evaluations of sexual aggression should be studied with more rigorous methodology (e.g., experimental design) and correctional/forensic populations, and possibly addressed in risk assessment and interventions.

Could you talk us through where the idea for the research came from?

Evaluations are an individual’s evaluative thoughts about something such as a person, object, or behavior (e.g., Albarracín, Zanna, Johnson, & Kumkale, 2005; Ajzen, 2001; Gawronski & Bodenhausen, 2007). Social psychology theory and research support the idea that evaluations, in part, predict behavior (e.g., Ajzen 1991, 2001; Glasman & Albarracín, 2006; Kraus, 1995). Empirical evidence suggests this is true whether the evaluations are immediate (implicit evaluations) or deliberative (explicit evaluations), and that both the automatic and deliberative evaluations are important (e.g., Greenwald & Farnham, 2000; Nosek & Smyth, 2007). From this research, my colleagues and I hypothesized that how someone evaluates sexual aggression would predict, in part whether or not they would engage in sexually aggressive behavior.

Prior to this study, we had conducted cross-sectional correlational and experimental research examining implicit and explicit evaluations of sexual aggression against adults. In some of our studies, we found more positive implicit evaluations of rape were associated with self-reported sexually aggressive behavior against adults and self-reported likelihood to rape (Nunes, Hermann, & Ratcliffe, 2013), and in all or our studies we found more positive explicit evaluations of rape were associated with self-reported sexually aggressive behavior against adults and self-reported likelihood to rape (Hermann, Nunes, & Maimone, 2016; Nunes, Hermann, White, Pettersen, & Bumby, 2016; Nunes et al., 2013). These studies provided preliminary evidence that evaluations are related to sexual offending against adults. Prior to this study, however, we hadn’t yet explored whether evaluations predict subsequent sexually aggressive behavior against adults. This was an important next step because if evaluations are a causal factor for this type of behavior, then we would expect that they would predict whether or not people engage in future sexually aggressive behavior.

We also wanted to explore this research question using a sample of men recruited from the community. Sexually aggressive behavior encompasses behaviors that differ in tactic (verbal coercion to physical aggression) and sexual acts (unwanted kissing or touching to penetrative acts). We know that many sexual assaults go undetected, and even if they are detected, may not result in official charges or convictions. This means that individuals with convictions for sexual aggression may not be fully representative of men who engage in sexually aggressive behavior against adults. In our past research we have used student samples, but these samples tend to be fairly homogeneous in their demographic characteristics, so they also may not be fully representative of men who engage in sexually aggressive behavior against adults. Community samples can offer diversity and complement samples of students and men with convictions for sexual aggression.       

What kinds of challenges did you face throughout the process?

There were several logistical challenges we faced while conducting this research. The first was conducting this type of research online with a sample of community men. We needed to be able to get quality data and compensate participants for their efforts. We tried several different methods of collecting data online before settling on using Qualtrics and recruiting from a panel of participants.

 

A second challenge we faced was setting up the implicit measures in the Qualtrics survey environment. We hired a computer programmer to help with the development of these measures, but still had to work closely with the computer programmer to tailor the measures to our needs. We used a combination of computer code (javascript) and pre-existing Qualtrics’ functions to present the blocks and trials, randomize the presentation of stimuli, and record reaction times for our IAT measures.

 

What do you believe to be to be the main things that you have learnt about evaluations of Sexual Aggression in predicting sexually Aggressive Behavior in men in the community? 

 

This research is preliminary, but suggests that explicit and implicit evaluations are relevant for understanding sexual aggression against adults. This is consistent with the social psychology literature noted above and suggests we should continue to explore the role evaluations may play in sexual aggression against adults.

 

This research was part of a series of studies I conducted for my dissertation (also see Hermann et al., 2016; Hermann, 2015). From these studies, we also learned that the pattern of relationships between evaluations and past sexually aggressive behavior and self-reported likelihood to rape was consistent for samples of students and community men. A common critique of research on sexual aggression conducted with student samples is that the results may not generalize to other samples of men (i.e., community or incarcerated samples). The results of the current study suggest that this may not be the case for research exploring the relationship between evaluations of sexual aggression and sexually aggressive behavior. Next we would like to try to replicate these findings with incarcerated samples of men with convictions for sexual aggression against adults to determine if research conducted with students and community men could also generalize to this population.

Now that you’ve published the article, what are some implications for practitioners?

 

We would suggest that more rigorous research is needed replicating and expanding this line of research before there are implications for practitioners. However, if future research finds evaluations predict sexually aggressive behavior against adults, that evaluations of sexual aggression can change, and that change is associated with changes in sexually aggressive behavior, then evaluations of sexual aggression would be an important target in risk assessment and treatment. 

 

Chantal A. Hermann, Ph.D

 

 

References

 

Albarracín, D., Zanna, M. P., Johnson, B. T., & Kumkale, G. T. (2005). Attitudes: Introduction and scope. In D. Albarracín, M. P. Zanna, & B. T. Johnson (Eds.), The Handbook of Attitudes (pp. 3-19). New York, NY: Lawrence Erlbaum Associates.

Ajzen, I. (1991). The Theory of Planned Behavior. Organizational Behavior and Human Decision Processes, 50, 179-211. doi 10.1016/0749-5978(91)90020-T

Ajzen, I. (2001). Nature and operation of attitudes. Annual Review of Psychology, 52, 27-58. doi: 10.1146/annurev.psych.52.1.27

Glasman, L. R., & Albarracín, D. (2006). Forming attitudes that predict future behavior: A meta-analysis of the attitude-behavior relation. Psychological Bulletin, 132, 778-822. doi: 10.1037/0033-2909.132.5.778

Gawronski, B., & Bodenhausen, G. V. (2007). Unraveling the processes underlying evaluation: Attitudes from the perspective of the APE model. Social Cognition, 25, 687-717. doi: 10.1521/soco.2007.25.5.687

Greenwald, A. G., & Farnham, S. D. (2000). Using the Implicit Association Test to measure self-esteem and self-concept. Journal of Personality and Social Psychology, 79, 1022-1038. doi 10.1037//0022-3514.79.6.1022

Hermann, C. A. (2015). Evaluations of rape: Investigations using implicit and explicit measures, online research methodology, and samples of community men (Unpublished doctoral dissertation). Carleton University, Ottawa.

Hermann, C. A. & Nunes, K. L. (2016). Implicit and explicit evaluations of sexual aggression predict subsequent sexually aggressive behavior in a sample of community men. Sexual Abuse: A Journal of Research and Treatment. Advance online publication. doi: 10.1177/1079063216682952

Hermann, C. A., Nunes, K. L., & Maimone, S. (2016). Examining implicit and explicit evaluations of sexual aggression and sexually aggressive behavior in men recruited online. Sexual Abuse: A Journal of Research and Treatment. Advance online publication. doi: 10.1177/1079063216681560

Kraus, S. J. (1995). Attitudes and the prediction of behavior: A meta-analysis of the empirical literature. Personality and Social Psychology Bulletin, 21, 58-75. doi:

                10.1177/0146167295211007

Nosek, B. A., & Smyth, F. L. (2007). A multitrait-multimethod validation of the Implicit Association Test: Implicit and explicit attitudes are related but distinct constructs. Experimental Psychology, 54, 14-29. doi 10.1027/1618-3169.54.1.14

Nunes, K. L., Hermann, C. A., & Ratcliffe, K. (2013). Implicit and explicit attitudes towards rape are associated with sexual aggression. Journal of Interpersonal violence, 28, 2657-2675. doi: 10.1177/0886260513487995

Nunes, K. L., Hermann, C. A., White, K., Pettersen, C., & Bumby, K. (2016). Attitude may be everything, but is everything an attitude? Cognitive distortions may not be evaluations towards rape. Sexual Abuse: A Journal of Research and Treatment. Advance online publication. doi: 10.1177/1079063215625489