Note to Readers: The US Supreme Court has been asked to review Karsjens v. Piper, the federal lawsuit originating at the Minnesota Sex Offender Program. The Court’s decision to accept or reject the appeal (either way) will reshape sexual offender civil commitment in the US. Since June, four amicus briefs were filed to try to persuade justices to accept the case. Links to the entire briefs are below. For a review of the briefs, what’s at stake, and why SAJRT Blogger, Jon Brandt believes the Supreme Court will accept the appeal, this MSOP update has been split into two parts. Part 2 will be published next week. - Kieran
By Jon Brandt, MSW, LICSW
In December 2011, when Kevin Scott Karsjens and 13 other men at the Minnesota Sex Offender Program (MSOP) filed a pro se petition with the Federal Court in Minnesota, they probably had a little hope and a lot of doubt that it would go anywhere. Thousands of previous petitions have been tossed out of courts over 20 years, so why is Karsjens v. Piper headed to the Supreme Court (SCOTUS)? For the same simple reason that the US District Court accepted Karsjens: an involuntary treatment program with more than 700 detainees, and exits politically blocked for two decades, is “clearly broken.”
More than five years into Karsjens, this case is progressively more difficult to unpack, but here’s a two-paragraph review: In early 2012, the US District Court began a careful review of MSOP. After more than three years of investigations, and a six week trial, Federal Judge Donovan Frank released the court’s findings. In June 2015, in a highly principled opinion, Judge Frank determined that the sexual offender civil commitment (SOCC) scheme in Minnesota was indeed broken: unconstitutional on 12 counts. The State maintained there was nothing wrong at MSOP or with SOCC in Minnesota; that the problem was with Judge Frank’s ruling. The US Court of Appeals agreed.
The disparate opinions by the two courts might be explained by the District Court viewing Karsjens as primarily a civil rights case for a state institution that is “clearly broken,” while the Appellate Court viewed the case as a states’ rights matter – essentially, “if it’s broken, it’s not illegally broken.” In June 2017, Dan Gustafson, lead attorney for the Plaintiffs (MSOP clients) filed a persuasive appeal with SCOTUS (Docket 16-1394). In July, Defendants (State of Minnesota) filed their opposition.
So, why do I think the Supreme Court will accept the appeal? In part, on the strength of four powerful amicus briefs by nationally recognized law professors, scholars, and respected stakeholders. The briefs vigorously attack the Eighth Circuit’s defense of status quo, describe how SOCC laws/programs conflict with both constitutional principles and case law, and take careful aim to convince justices to accept the appeal. The authors eloquently appeal to both liberal and conservative perspectives, explain how SOCC schemes are contrary to empirical evidence, compare Karsjens with some of the ground-breaking civil rights cases in US history, and provide sound case law and strong arguments to reinstate the District Court’s determinations of “unconstitutional.” All the briefs boldly maintain that civil regulations for “sex offenders” are rooted more in anger, fear, and moral panic, than bona fide concerns for public safety, and that SOCC is at the pinnacle of such civil regulations. Each of the briefs take a somewhat different approach to try to persuade justices that SOCC in Minnesota (and other states) is unconstitutional, under at least the Fourteenth Amendment of the US Constitution - that no state shall deprive any person of life, liberty, or property, without due process of law. Summaries are largely excerpts from the amicus briefs.
Led by Eric Janus, (former President and Dean of Minnesota’s Mitchell Hamline Law School), 26 legal scholars from across the US joined in this amicus brief. Janus expressed that SCOTUS is not being asked to revisit Kansas v. Hendricks (1997), which narrowly approved SOCC in concept, but rather to uphold the constitutional principles that have been compromised by SOCC, in practice, now for 20 years. “This case should be reviewed by the Court for three reasons: First, the Court of Appeals’ decision sharply departs from 40 years of this Court’s civil commitment jurisprudence and decisions by multiple state courts of last resort, applying strict scrutiny analysis. Second, the MSOP systematically thwarts the liberty interests of over 700 detained people in Minnesota; more than 5,000 people are deprived of their liberty under these laws nationwide. If the Court of Appeals’ rule stands, there is no remedy when States systematically abuse their civil commitment programs. Third, the rule adopted by the Court of Appeals undercuts the checks and balances to restrain governmental overreach of fundamental individual liberty.”
“There is one characteristic that always marks a genuine civil commitment scheme: the durational limit. Confinement ends just as soon as its justification ends. The Minnesota Supreme Court approved MSOP’s scheme, “so long as the statutory discharge criteria are applied in such a way that the person subject to commitment… is confined only so long as he or she continues both to need further inpatient treatment and supervision for his sexual disorder and to pose a danger to the public.” These are not constitutionally insignificant “rounding errors” that are the unfortunate consequence of any human endeavor. There are strong reasons to conclude that there are hundreds of people held unconstitutionally because of the design of the MSOP. If these defects are complex and interrelated, their cumulative effect is simple and clear: Minnesota has systematically and intentionally created a confinement system, detaining more than 700 individuals, that ignores and thwarts the constitutionally required duration limitations of a bona fide civil commitment system.”
The Cato Institute is a nonpartisan public-policy research foundation dedicated to advancing the principles of individual liberty, free markets, and limited government. Reason Foundation is a nonpartisan public-policy think tank that advances a free society by developing and promoting libertarian principles and policies. “The Eighth Circuit held that Petitioners have no liberty interest in freedom from physical restraint—not that their liberty interest must be balanced against the state’s interest in protecting the public from violence, but that for sex offenders, that liberty interest simply does not exist. The MSOP’s complete failure to release any civilly committed sex offender is not simply a back-end political problem; it is a design flaw baked into the system. Despite its stated goals, Minnesota’s treatment approach falls flat and falls hard. By the state’s own admission, hundreds of civilly committed individuals have never received an assessment of their risk to the public. The MSOP is aware that at least some of the people in its custody satisfy statutory discharge criteria. Sex-offender laws have bored a hole in the nation’s constitutional fabric. As state and federal governments expand that hole - threatening to swallow other rights and others’ rights—this Court should intervene.”
Is SOCC creating “political prisoners?” Review of the other amicus briefs and commentary, in Part 2…Appreciation to the attorneys who provided guidance for this op-ed piece.