Magnuson: Act now on MSOP, or courts will

Since October, former Minnesota Supreme Court Chief Justice Eric Magnuson has chaired a task force charged with making recommendations to overhaul the state’s policies for dangerous sex offenders.

A federal judge ordered the creation of the 22-member panel in response to a class-action lawsuit challenging the conditions of confinement for nearly 700 men currently detained in the Minnesota Sex Offender Program. In more than two decades, just one individual has been provisionally discharged from the state’s civil commitment program for sex offenders.

In December the task force issued its initial set of recommendations, calling on the Legislature to provide funding for “less restrictive alternatives” to civil commitment at prison-like facilities in Moose Lake and St. Peter. Despite this directive, there has been no legislative action on the issue during the current session.
Magnuson was named chief justice of the Minnesota Supreme Court in 2008 by GOP Gov. Tim Pawlenty. He stepped down from that post two years later and currently is an attorney specializing in appellate law with the Briggs and Morgan firm.

Magnuson spoke with Capitol Report this week about the sex offender task force’s work. What follows is an edited transcript of that conversation.

Capitol Report: How would you characterize the potential legal jeopardy that the state faces if there are not significant changes to the Minnesota Sex Offender Program?

Eric Magnuson: The notion that people who suffer from certain emotional or mental illnesses that pose a danger to themselves or society can be involuntarily confined has been around for a long time. We lock up people all the time who are mentally ill and dangerous to protect them and to protect others. So the theory of civil commitment of sex offenders — someone who poses a substantial risk of serious sexual harm, either physical or emotional, to someone else being civilly committed while they receive treatment for those conditions — passes constitutional muster.

But if you have a system like that, you have to have a program that contemplates effective treatment. That’s kind of the constitutional linchpin. And in Minnesota, in 30 years, only one person has made it through the program, and that kind of speaks volumes about the program maybe not being effective.

This federal lawsuit challenged the way the system was run. The federal judge said, basically, we’ve got the issues all laid out here. My view is, he was telling the state, “Here’s a chance for you to look at the recommendations of an independent group, see if there’s anything you want to do, before I start getting out the constitutional broadsword.”

CR:When you say “constitutional broadsword,” what does that mean? What do you fear could happen if the state fails to heed that directive?

Magnuson: Judges aren’t legislators. They don’t make lots of fine policy distinctions. With the constitution, really the judge has almost a binary choice: constitutional [or] not constitutional. I heard, when I was speaking to legislators, some express the notion that there’s no real serious problem here because the federal court will fix it. That’s just wrong. The federal court will declare the system unconstitutional, tell the state make it constitutional, not tell them how, but give them a schedule that they may not like. [Look at what] the federal courts have done in California with their prison system. They said these prisons are operated unconstitutionally. Fix them. They didn’t fix them. [The court] said, “OK, we’re releasing a bunch of prisoners.” I don’t know if it will go that far here. But there have been several reports — the governor’s task force in 2005, DHS, the Office of the Legislative Auditor — they all say, look, there are some real problems with how the system’s run and here’s how you fix them. I think the court is just giving the state a chance to do something voluntarily and thoughtfully rather than having to react to mandates from the court.

CR: The task force was directed to come up with recommendations for less restrictive alternatives to civil commitment by December 10, ahead of the legislative session. You did that and sent those recommendations to the Legislature. And yet there doesn’t seem to be any evidence of the Legislature taking any action on those recommendations so far, with policy deadlines less than two weeks away. What do you think of that?

Magnuson: I’ve seen enough of how the Legislature works to know that what you see on the surface may not be what’s going on underneath. But a lot of what we’ve proposed, [Department of Human Services Commissioner Lucinda Jesson] has moved ahead with on her own. It doesn’t necessarily need legislative action. For example, we said one of the biggest problems with less restrictive alternatives is there really aren’t any. So she issued a request for information, which is kind of like an inventory request for the all the programs out there — public and private — that might be able to provide services in a less restrictive environment.

One of the things I’ve heard is, well, the state can’t spend the money on this if you revamp the system. Well, everything I’ve seen leads me to conclude that the state is spending absolutely the most money it possibly could dealing with sex offenders. It’s treating all of them at the highest level of confinement at $120,000 a year. You couldn’t spend more money. If you design programs that have better treatment programs, more flexibility, you can still ensure public safety but spend less money.… You’re going to have 1,100 people in this program by the end of the decade if something isn’t done. You’re going to be spending $132 million a year just to warehouse people.

CR: But are you convinced that, absent legislative action, the Department of Human Services could take action on their own that would satisfy the federal court?

Magnuson: I don’t know what would satisfy the federal court. They could show some progress to address the really glaring areas. I think the commissioner can do some stuff. I think that there are some procedural and substantive hurdles to the system operating well. For example, one of the things we’re talking about right now is that you change the process and the burden of proof on moving to a less restrictive alternative.
Right now if you’re committed to MSOP, you presumptively go to the most secure area, and it is the patient’s burden of showing that he can be treated in a less restrictive alternative. There really aren’t any places he can show that he should go to right now. One of the things we’re considering is switching that to have, perhaps, a two-part commitment process. One where the judge decides, up or down, whether they need to be committed. Once that decision has been made, then a second proceeding where the state has to come in and establish the necessary level of security, as opposed to a presumptive one. That might get the pipeline moving better.

CR: But wouldn’t that require legislative action?

Magnuson: That would, because there are statutes that deal with it now and presumptively commit to the most secure environment.

CR: Do you have a timeline in mind? Is that something that you might bring forward in time to be acted on this legislative session?

Magnuson: Well, I think anything we come up with can be acted upon. There are all sorts of ways to get things into the legislative process. We’re working as fast as we can. We are not a lobbying group. We are not an arm of DHS. We are not an arm of the Legislature. We’re an independent group of diverse background who’s working as hard as we can to find some clarity and make suggestions.

CR: You’ve been meeting with legislators in recent weeks. How has that gone?

Magnuson: I think they’re interested. They have a lot of things on their plate. It’s a little hard sometimes to get their attention. … Just getting them to understand what we’re doing has been one of my goals. And then to press upon them the notion that there is some urgency here, that it is not reasonable to think that we don’t have to do anything.

CR: Do you worry about the politics of this? As you undoubtedly know, they’ve been poisonous historically. Do you try to put that out of your mind in pressing the case for this?

Magnuson: I’m not pressing the case. I’m trying to answer questions that the federal court asked. To me, there are some pretty obvious issues and solutions. I worry about the politics only in the most general sense — that I understand that this is a politically sensitive issue and I don’t want to spend a lot of time crafting recommendations that have no chance at all of being passed. Thirty states don’t have sex offender civil commitment. One of our recommendations could have been, just bag it. Well, I didn’t think that was going to go anywhere, and the task force didn’t either.

CR: There are 53 individuals enrolled in MSOP who have never been convicted of crimes as an adult. They turned 19 and were referred for civil commitment. Is that something that is within the purview of the task force for consideration?

Magnuson: When we get to the first issue, which is the legal standards and procedures for commitment to MSOP, we may talk about that. The prior history of an individual says something about how you predict future behavior. Convictions mean something, but there’s a lot of unconvicted misconduct. It really is conceptually independent of the criminal conviction. I think the whole idea of how you treat juveniles — with the United States Supreme Court case that said you have to treat kids differently than you treat adults with regards to capital murder — is a factor. We won’t ignore that. But I don’t know that that will be the focus of what we’re looking at.