Court-driven MSOP reforms still alive

But prospects for legislative action still murky

When Rep. Tina Liebling’s bill proposing substantive changes to the Minnesota Sex Offender Program (MSOP) came up for a committee hearing last month, she pleaded with legislators not to turn it into a political mallet.

“What often happens is that this is an issue that gets used in campaigns,” said Liebling, DFL-Rochester, at the start of the hearing before the Health and Human Services Policy Committee. “That dynamic around this issue has really prevented this Legislature from solving what is really a significant problem for all of us.”

But Liebling’s warning did little to alter the dynamic at play. Republicans raised repeated objections to the bill. “We’re talking about sexual psychopaths that are sexually attracted in many cases to very young and small children,” said Rep. Nick Zerwas, R-Elk River.

When it came time to vote on the bill, Rep. Tara Mack, R-Apple Valley, called for a roll call. That caused Liebling to threaten to table the bill.

“By asking for a roll call, you are scuttling this bill and it will be really clear who’s doing that,” Liebling said. “As I said at the outset, this has to be a non-political issue.”

Ultimately Mack rescinded her call for a roll call and the bill advanced on a voice vote. But the incident highlighted how politically tricky any changes to the Minnesota Sex Offender Program (MSOP) will be. The bill is expected to get its next hearing in the House on Wednesday before the Judiciary Finance and Policy Committee. Liebling says she will stick to the same rule of tabling the bill if a roll-call vote is requested.

A companion bill, sponsored by Sen. Kathy Sheran, DFL-Mankato, has cleared two committees in the Senate without significant dissent from Republicans. Senate Minority Leader David Hann even signed on as a co-author of the bill, but subsequently removed his name.

Hann says that shouldn’t be taken as an indication that he won’t support the bill. He wants to wait until it’s finalized before deciding whether to re-attach his name to the legislation. “I’m interested in trying to move the issue forward,” Hann said. “It was more of a miscommunication than anything else.”

“We have had both Republican and Democratic votes,” Sheran said. “So far in the Senate, there has not been evidence that this bill has been politicized.”

Class-action lawsuit looms

The legislative activity is being spurred by a class-action lawsuit in U.S. District Court challenging the terms of confinement for nearly 700 individuals who are being held at prison-like facilities in Moose Lake and St. Peter. Minnesota has the highest per capita rate of civilly committed sex offenders in the country. Over the last two decades, just one individual has been deemed sufficiently rehabilitated to be provisionally discharged.

In August a federal judge ordered the state to create a task force to scrutinize ways of improving the troubled program. That 22-member panel, chaired by former Minnesota Supreme Court Chief Justice Eric Magnuson, released its initial findings in December.

“The Legislature must provide adequate funding for less secure residential facilities, group homes, outpatient facilities, and treatment programs,” the task force report reads. “The Legislature must ensure that such facilities and programs are operational within a reasonable period of time.”

The overarching fear is that if the state doesn’t take action, the federal judge will intervene and force the state to take corrective action — at whatever cost is necessary. Magnuson has repeatedly emphasized the potential consequences if the court is not satisfied that the state is taking reasonable steps to address the constitutional shortcomings of the MSOP. He has compared the situation to that of the California prison system, which was ordered to release thousands of prisoners in 2009 after federal judges determined that conditions of confinement violated the constitutional prohibition against cruel and unusual punishment.

“There is urgency to you taking action,” Magnuson said during the hearing before the House Health and Human Services Policy Committee. “A federal court has great power, but it is the power of a broadsword. It is not a scalpel.”

The legislation moving forward in the House and Senate remains a work in progress. Liebling expects to offer a significant amendment to the bill when it’s before the Judiciary Committee on Wednesday.
But both the House and Senate versions of the legislation would tweak the process through which people are involuntarily detained at Moose Lake and St. Peter. Under the current system, if a judge determines that a person is a sexually dangerous person or has a sexually psychopathic personality, that individual is automatically enrolled in the treatment program at those two facilities. The proposals would add a second step to the process, 60 days after the initial ruling, at which time the judge would further determine the appropriate venue for detaining the person. This would potentially allow individuals who don’t present as great a threat to society to be held in less-restrictive settings.

Both bills also propose a significant change in the review process for MSOP enrollees. Currently their status is reviewed only if a detainee seeks such a determination. This means that many individuals go years with no assessment of whether they are in the proper setting to receive treatment and ensure public safety. Under the proposals, there would be an automatic review of each enrollee’s status every year or two.

“If people know an independent reviewer is going to look at their work every so often, hopefully they’re going to be a little more on their games and people are not just going to languish,” Liebling said.

Both Liebling and Sheran emphasize that the proposals are merely a first step in overhauling the MSOP. “The bill is not an enormous bill or an enormous change,” Sheran said. “But it’s intended to be a beginning step to show responsiveness to the court.”

The Department of Human Services has also been taking steps to respond to the task force’s recommendation. Earlier this year it issued a “request for information” on possible less-restrictive alternatives that already exist. According to DHS Commissioner Lucinda Jesson, the agency has received 21 responses. “We need alternatives,” Jesson said during a recent committee hearing. “We don’t have those alternatives today.”

Lack of DFL leadership

Republicans point out that DFLers must lead on the contentious issue given that they control both legislative chambers and the governor’s office. Rep. Jim Abeler, R-Anoka, is a co-author of the House bill and sits on the sex offender advisory task force. He argues that DFLers haven’t done enough to reach out to Republicans throughout the legislative session, thus compounding the difficulties in building a bipartisan front. “It takes strong leadership to build a collegial, collaborative environment,” Abeler said. “That hasn’t happened here.”

Sen. Warren Limmer, R-Maple Grove, the ranking minority member of the Judiciary Committee, reaches a similar conclusion about a lack of urgency shown by DFLers on the issue. “This should have been a high priority on the part of legislative leadership,” Limmer said. “They seem to be taking, to be kind, a more deliberate approach.”

Limmer believes that the Legislature will be missing an opportunity to avoid more drastic court action if it fails to fix the program’s well-documented failings. “They’re giving us a moment in time to correct the situation before they ultimately will step in,” Limmer said of the federal court. “I think that’s a wise judge that’s giving the state an opportunity.”

Liebling has altered her stance on the need to act on the issue this year. Earlier in the legislative session, she suggested to Capitol Report that legislative action wasn’t necessarily needed in 2013. But now she argues that legislators must show the court that they’re serious about the issue. “We’re not going to solve every problem this year,” Liebling said. “We’re going to take on a smaller chunk of this than really I’d like to do, but we need to do something.”