House inaction dooms MSOP reforms

At a Friday morning committee hearing, just 10 days before the close of the legislative session, Rep. Steve Drazkowski offered an idea for dealing with the state’s troubled civil commitment program for sex offenders. Drazkowski proposed creating a bipartisan task force to recommend changes to the Minnesota Sex Offender Program.

“This is a very important and very fundamental public safety concern for the people of Minnesota,” Drazkowski said. “How we approach this is very, very, very important.”

Punting on difficult issues by appointing a task force to provide further study is a time-honored tradition at the Capitol. But in the context of the MSOP, that notion is particularly dubious.

The flaws of the civil commitment program have been documented ad nauseam. In 2005, a commission appointed by Gov. Tim Pawlenty to study the state’s sex offender policies released a 57-page report detailing its findings. Two years later, the Minnesota Department of Corrections issued its own report — totaling 189 pages — scrutinizing the state’s sex offender management policies. Then, in 2011, the Minnesota Department of Human Services released a report (58 pages) looking at the growth and cost of the MSOP. That same year the Office of the Legislative Auditor issued its own 111-page report documenting widespread problems in the treatment program for civilly committed sex offenders.

Since November, a court-mandated task force, chaired by former Minnesota Supreme Court Chief Justice Eric Magnuson, has been meeting to provide recommendations for changes to the MSOP. Members of the committee include retired federal judge James Rosenbaum, Minnesota Department of Corrections Commissioner Tom Roy, Olmsted County Attorney Mark Ostrem, and four legislators. The panel’s initial recommendations, released in December, formed the basis for legislation introduced during the 2013 session.

The court-mandated task force stems from a class-action lawsuit challenging the terms of confinement for the nearly 700 men who are indefinitely detained at prison-like facilities in Moose Lake and St. Peter. In two decades, just one person has been provisionally discharged. That’s problematic, because the individuals involuntarily enrolled in the program have already completed their prison sentences and are there under the guise of receiving treatment.

In an interview with Capitol Report in March, Magnuson warned that if the Legislature did not act, the courts would. “This federal lawsuit challenged the way the system was run,” he noted. “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.’”

Bill cleared Senate

But apparently no amount of documentation about the need for changes to the civil commitment program was sufficient to convince the Legislature that action on the combustible issue was necessary this year. The MSOP bill cleared the Senate with bipartisan support, including the backing of Minority Leader David Hann. But the companion measure in the House never came up for a vote on the floor. The reason? Republicans refused to provide significant votes for the measure. In turn, DFLers — fearful of being tarred as soft on sex offenders during the 2014 campaign season — declined to take it up without bipartisan cover.

It was a failure — demagoguery on the part of Republicans, timorousness on the part of DFLers — that leaves the state in an extraordinarily precarious position.

On Thursday, Gov. Mark Dayton expressed frustration that nothing had been done regarding MSOP and the impending threat of court action.

“I urged the leadership of both parties consistently throughout the session,” he told Capitol Report. “It’s an issue that no one really wants to deal with, but we are being compelled to. And if we don’t, the federal courts will impose something on us, and that takes us out of the decision-making process.”

“It is a disappointment, to say the least, that in the face of pretty clear information about consequences, the Legislature didn’t act,” said Eric Janus, who is the dean of the William Mitchell College of Law and a member of the MSOP task force. “The Legislature had a really clear opportunity to reaffirm the non-political, treatment-oriented purpose of civil commitment and it didn’t happen.… I think what the state is essentially saying at this point is that they want to have the federal court take responsibility for fixing the program, and I don’t think they’re going to be all that pleased with the results.”

In frequent appearances at the Capitol, including closed-door meetings with the DFL and GOP legislative caucuses, Magnuson repeatedly stressed what he viewed as the dangers of inaction by the Legislature. He often cited California’s prison system as an example of what could happen if the state fails to heed the court’s warnings. In 2009, a federal judge ordered that thousands of prisoners be released after determining that the conditions of confinement violated the constitutional prohibition against cruel and unusual punishment.

“If the federal court decides that it has to act instead of waiting for the Legislature, it will not be nearly as reasonable and orderly a process as we had proposed,” Magnuson said after the session ended. “If the court [rules] that there’s a constitutional issue, it’s going to demand immediate changes and there won’t be time for much planning. I think that’s unfortunate. The Legislature had a real opportunity here. They have lost it.”

Bill’s reforms were modest

The legislation that was scuttled — carried by Rep. Tina Liebling, DFL-Rochester, and Sen. Kathy Sheran, DFL-Mankato — would not have made dramatic changes to the MSOP. It would have set up a two-part intake system. If an individual was deemed by a judge to meet the standard for civil commitment, there would then be a second hearing, within 60 days, to determine the appropriate treatment setting for that person. Currently all civilly committed sex offenders are sent to either Moose Lake or St. Peter.

In addition, the legislation would have required a biennial review of each MSOP enrollee’s status to make sure that he was in the appropriate setting. The Minnesota Department of Human Services would be tasked with appointing an expert to conduct the review.

It’s impossible to predict what might result from the federal class action lawsuit. But there’s abundant evidence that the justices who have considered the case see significant constitutional concerns with the program. In addition to the task force chaired by Magnuson, there was an additional, five-member panel of sex offender treatment experts appointed in December to specifically scrutinize the MSOP’s treatment program.

The case was originally filed by a civilly committed sex offender confined to the treatment facility at Moose Lake. But after a judge determined that there was merit to the case, attorney Dan Gustafson was appointed to represent the plaintiff. In July the case was certified as a class-action lawsuit. The state has been in ongoing settlement talks with attorneys for the plaintiffs in the case, but Gustafson believes the lack of legislative action makes reaching a deal more complicated.

“The Legislature, rather than helping the situation, they made it more difficult,” said Gustafson. “It’s more likely now that the case will go back on the litigation track because of the Legislature’s failure to act. … I’m not saying that the settlement talks are dead or over. But now we have to find a way to do the Legislature’s job, too.”