MSOP: Settlement or court action?

Over the past year, there have been more than 60 hours of settlement talks between lawyers representing nearly 700 civilly committed sex offenders and the Minnesota Attorney General’s Office. On Thursday, they will meet again to try to negotiate an end to a class-action lawsuit questioning the constitutionality of the troubled Minnesota Sex Offender Program (MSOP).

The settlement talks resume after the Legislature failed to take action on recommended changes to the program made by a court-appointed task force led by former Minnesota Supreme Court Chief Justice Eric Magnuson.

“The Legislature has made everybody’s job more difficult by shirking their responsibility,” said Daniel Gustafson, an attorney who was appointed last year to represent the interests of detainees at prison-like facilities in Moose Lake and St. Peter. “They could have helped this process along by passing the legislation that the task force had recommended, but they don’t have the political courage.”

That potentially leaves the fate of the program in the hands of federal judges, who already have made it clear that they see significant constitutional flaws in the civil commitment program.

Suit launched in 2011

In December 2011, Kevin Scott Karsjens and 13 other civilly committed sex offenders filed a lawsuit in U.S. District Court questioning the constitutionality of their confinement. They argued that policies developed over the last two decades by the Minnesota Sex Offender Program — including confinement to prison-like cells and invasive body searches — ran afoul of the First, Fourth and 14th Amendments and that they were entitled to more than $750,000 in damages.

“The real mission of the MSOP now is institutionalization, preventative detention and punishment,” wrote Karsjens, a convicted sex offender from Morrison County, and the other plaintiffs. “There is no rehabilitative purpose. None of these restrictions were necessary in the prior years to maintain control of the facility. The restrictions and changes have actually created a hostile environment that encourages a sense of hopelessness, powerlessness and fear.”

Such civil rights lawsuits by individuals detained in the MSOP are routine — and they routinely are dismissed as frivolous. But the Karsjens suit, which names six state officials as defendants, including Minnesota Department of Human Services Commissioner Lucinda Jesson, apparently caught the attention of U.S. District Judge Donovan Frank. In January 2012, he referred the case to the Federal Bar Association’s Pro Se Project. That resulted in the appointment of a team of lawyers, led by Gustafson, to work on the case.
The outcome of that litigation could have significant ramifications for the state. There are currently almost 700 MSOP detainees held at prison-like facilities in Moose Lake and St. Peter. That population has nearly tripled over the last decade, and Minnesota has the highest per-capita rate of civil commitments in the country. Only one person has been provisionally discharged from the program since its current inception was launched in 1994.

That lack of success at rehabilitating and releasing civilly committed sex offenders has led to serious concerns about the constitutionality of the MSOP. The courts initially validated the indefinite detainment of sexual predators on the condition that they’re offered a credible treatment regimen. At the time, state officials represented in court filings that the treatment program could be completed in 32 months.

During the 2013 legislative session, a bill that would have tweaked the intake and review process for civilly committed sex offenders was put forward by Sen. Kathy Sheran, DFL-Mankato, and Rep. Tina Liebling, DFL-Rochester. The legislation cleared the Senate with bipartisan support. But it never came up for a vote in the House after Republicans refused to promise substantial votes for it. In turn, DFL leaders declined to bring forward the politically volatile bill, fearing it would be used in 2014 campaigns.

Nearly 300 filings

In the 17 months since Gustafson was assigned to the Karsjens lawsuit, there have been nearly 300 case filings. In March 2012, an amended complaint was filed detailing the alleged constitutional problems with the MSOP. Among the concerns were lack of adequate treatment, limitations on free speech and invasive body searches.

Then, in July, Judge Frank certified the case as a class-action lawsuit. At that time, there were more than 65 similar civil rights lawsuits filed by civilly committed sex offenders pending in federal court.
All of those cases have now been put on hold pending the outcome of the Karsjens case.

Not all MSOP clients wanted to be included in the class. A group of 15 individuals, who are refusing to participate in treatment, asked that the court treat them as a subclass because they are subject to harsher treatment than the other clients.

“Generally, the named plaintiffs and the class they represent are interested in the revision of the MSOP program to meet constitutional requirements,” reads a motion filed by MSOP enrollee Guy Greene. “Movant and the subclass to which he belongs are, as one example, interested in getting the MSOP gulag shut down permanently.”

In August, the court created a task force to provide guidance on potential remedies for the MSOP’s problems. That 22-member body, which is chaired by Magnuson and includes four legislators, has been meeting regularly since November. The legislation that the House failed to pass was based in part on their recommendations.
In November, the court ordered the creation of an additional panel of five experts in sex offender treatment to scrutinize the MSOP’s treatment program. That group, after studying the case files of 50 clients, reported its findings to the court in April. The panel determined that 88 percent of the clients scrutinized were in the appropriate phase of treatment, but also pointed to some long-standing flaws in the program. “Some therapists’ notes indicated that large group size and frequent staff changes interfered with client progress,” the report noted. That finding is similar to concerns raised in a 2011 report by the Office of the Legislative Auditor.

While settlement talks have proceeded sporadically, there’s been no ruling on the attorney general’s motion to dismiss the case. “Many of the claims of unconstitutional policies and practices at MSOP raised by Plaintiffs have been previously held constitutional by the Minnesota Federal District Court and the Eighth Circuit or are otherwise not actionable,” reads the motion to dismiss. “Consequently, Plaintiffs’ Amended Complaint should be dismissed with prejudice.”

Despite the further settlement talks scheduled for Thursday, Gustafson says the Legislature’s failure to take action has made the chances of reaching an agreement less likely. “It’s clear that we can’t continue on the path we’re on,” he said.