Key Republican legislative leaders hoped to push fundamental changes, but that now looks unlikely
A proposal to overhaul Minnesota’s policies for dealing with dangerous sex offenders looks highly unlikely to gain any legislative traction this year. The politically contentious issue appears to be disappearing from the legislative radar despite months of work by key Republican leaders and officials with the departments of Corrections and Human Services.
“There doesn’t seem to be any appetite, on the House side anyway, for progressing very far on this sex offender issue,” said Rep. Tony Cornish, R-Good Thunder, chairman of the Public Safety and Crime Prevention Policy and Finance Committee. “And that’s unfortunate.”
The proposed reworking of the state’s sex offender policies follows a critical 2011 examination of the state’s civil commitment program by the Office of the Legislative Auditor. That report pointed out that Minnesota has the highest per capita rate of civil commitment in the country and has never successfully rehabilitated and released an indefinitely detained sex offender in the two decades since the Minnesota Sex Offender Program (MSOP) was launched.
In addition, the number of individuals involuntarily enrolled in the MSOP has quadrupled in the last decade and is expected to double again in the next 10 years. Each additional enrollee costs the state $120,000 annually, or roughly four times the annual confinement cost for prison inmates. The legislative auditor’s report also found that the percentage of referrals for civil commitment varies widely across the state and that there are too few lower-cost alternatives to indefinite detention.
Reform push runs into political fears
No legislation has been introduced. But a draft bill circulated by Cornish and Sen. Warren Limmer, R-Maple Grove, chairman of the Judiciary Committee, contained fundamental changes to both the state’s criminal sentencing policies and civil commitment procedures for sex offenders. Most notably, it proposed implementing indeterminate sentencing for serious offenders. Under such a scenario, once inmates had completed a mandatory minimum sentence, a three-member review panel would determine whether they should be released. The expectation is that this would allow the Department of Corrections to incarcerate sex offenders for a much longer period of time and eventually reduce the volume of civil commitment referrals.
In addition, the draft proposal would set up a statewide five-member civil commitment screening panel, as suggested in the legislative auditor’s report, to increase the likelihood that all individuals would be treated equally. The proposal also orders courts to seek less restrictive and costly alternatives to civil commitment, particularly for people with mental disabilities, the elderly and those who have not been convicted of any crimes as an adult.
Limmer insists that there will still be a policy bill introduced this legislative session but acknowledges that it might not be as extensive as initially envisioned. “We haven’t let go of it,” Limmer said. “We’re just trying to figure out how far we’re going to go.”
But the proposal has gotten caught up in the always-fraught politics of sex offender policy. Earlier this month, a three-judge panel in Ramsey County ruled that Clarence Opheim should be “provisionally discharged” from the MSOP. The 64-year-old has spent two decades in the civil commitment program after completing his criminal sentence and would continue to face strict supervision. Opheim was convicted of three counts of criminal sexual conduct in the 1980s. The ruling came after DHS Commissioner Lucinda Jesson indicated to the judges that she had no objections to his release.
House Speaker Kurt Zellers and Majority Leader Matt Dean immediately released a letter blasting Gov. Mark Dayton’s administration for being soft on sex offenders. “Mr. Opheim is responsible for approximately 100 separate sex offenses with almost 30 different victims, with one of those victims as young as eight years old,” Zellers and Dean wrote. “Releasing a dangerous child sex predator into a densely populated urban area is reckless, and runs counter to your stated goal of making public safety the top priority for state government.”
Dayton: Law needs to be changed
Dayton responded with a letter of his own, accusing the GOP leaders of failing to back up their words with legislative action. “The position implicit in your letter is that none of these sexual predators should ever be released from their institutional confinements,” Dayton wrote. “If that is your view, for which there is certainly justification, have either of you during your years in the Legislature sponsored a bill to change the law accordingly?”
Dayton further pointed out that litigation challenging the constitutionality of the MSOP is being weighed by the courts and that failing to make changes to it could lead to the program being ruled unconstitutional. “For now, the law on the books must be followed,” Dayton wrote. “The previous administration was able to keep all of these individuals confined indefinitely and avoid these extremely difficult decisions. In light of the aforementioned litigation, my administration does not have that option.”
The public jousting has apparently erased any enthusiasm for tackling sex offender policy in a comprehensive way. Limmer argues that the alarmist rhetoric about Opheim — particularly by Republicans in the House — is undermining productive discussion of the issues. “I think the critics of allowing an individual to go from the civil commitment to a highly supervised, high-security, GPS-ankleted individual that is never going to be out on his own without staff with him, in a halfway house that’s designated for sexual offenders, could undermine the process of needed reform in our civil commitment process,” Limmer said. “The one-size-that-fits-all [system] that we have right now is proving day after day that it does not work and it’s extremely expensive.”
Cornish is slightly more circumspect in assigning blame for the apparent derailment of the sex offender policy proposal he helped to fashion. “I’m just frustrated at how tough it is to grasp a resolution to this whole mess, because the auditor’s report was pretty clear,” Cornish said. “But I’m not blaming anyone, because the person that ultimately makes a decision to release a sex offender has to know that he or she could be on the edge of ending a career if it’s a wrong decision.”
Cost factors also an issue
Politics isn’t the only factor in the sex offender discussion’s failure to take shape legislatively. In addition, it’s become clear that the changes proposed by Cornish and Limmer would cost money. Developing a statewide civil commitment screening panel, for instance, would mean that the state would be taking over a function currently run largely by county officials. Although no fiscal notes have been created, any significant cost would almost certainly make the proposal a non-starter. In light of the roughly $2 billion in delayed payments that the state owes K-12 schools, diverting resources to a program for the state’s most dangerous sex offenders isn’t likely to be a popular plan.
“That’s the thing about reform,” Cornish said. “It’s not always cheap. … Policy reform sometimes costs money.”
Limmer expresses a similar sentiment. “Some of it is limited just by plain economics, the cost of it,” he said. “We’re trying to get a fiscal note, but you can’t do that until you have a formal bill put in. But it will be costly.”
The lack of progress in overhauling the state’s policies for sex offenders has frustrated some interested parties at the Capitol. John Kingrey, executive director of the Minnesota County Attorneys Association, points out that he and others have spent significant time working on the issue in recent months. “It’s too bad they’re not going to do anything,” Kingrey said. “We’re disappointed that it appears significant discussion on this issue will not go forward this session.”
There’s still a chance that sex offender legislation will be introduced this session. But if so, it will likely be a more modest proposal than the draft legislation put forward by Cornish and Limmer. That raises the prospect that, as legal scholars have long warned, the MSOP could be found unconstitutional if its putative status as a treatment program does not yield successful outcomes — meaning the release of some confinees. In fact, a court ruling striking down the program might be the only development that could spur action by the Legislature on the issue.
“It’s the kind of thing where maybe it’s going to take a judicial decision to force the hand of the Legislature,” said Sen. Ron Latz, DFL-St. Louis Park, the ranking minority member of the Judiciary Committee. “I think if that happens, it would be an indictment of the legislative leadership.”