No one who has been paying close attention to proceedings in the U.S. District Court case challenging the Minnesota Sex Offender Program (MSOP) is surprised to learn Judge Donovan Frank thinks the state is in violation of the constitution. Frank had intimated as much in prior findings and utterance, and key legislators have mulled possible changes to the program for years.
But the Legislature’s chance at making a preemptive change to state law is slipping away, and a prescriptive ruling might prove the only consequence that will lead to actual reform.
Frank condemned the existing law and practices for civil commitment in harsh language Tuesday.
“The stark reality is that there is something very wrong with this state’s method of dealing with sex offenders,” Frank wrote, noting that not a single detainee had been released since the program was first crafted in 1994.
To Rep. Tony Cornish, R-Vernon Center, chair of the House Public Safety and Crime Prevention Finance and Policy Committee, said Frank’s ruling was a “vague” one, declaring the system unconstitutional while simply putting the onus back onto the Legislature to fix the vexing issue.
“It’s clear to me that [Frank] isn’t any more anxious to put dangerous sex offenders back into society than the Legislature is,” Cornish said. “He called it unconstitutional, but then offered no remedy.”
In fact, Frank offered more than a dozen remedies, but didn’t land on or even lean toward any one of them, instead saying those ideas — and others — should be considered by elected officials. Frank also took the extraordinary step of inviting Gov. Mark Dayton, Senate Majority Leader Tom Bakk and House Speaker Kurt Daudt, among other key figures, to attend an August 10 pre-hearing conference.
Of the state’s three elected leaders, Bakk is the only one whose support staff, such as it were, has shown any interest in amending the civil commitment statute in light of the court case. Dayton has consistently defended the program, and did so again on Wednesday, issuing a statement that said he disagrees with the finding of unconstitutionality, and saying Attorney General Lori Swanson would work to “defend the law.”
Rep. Peggy Scott, R-Andover, speaking before she was able to read the report in full, said Dayton’s challenge, successful or not, could cut the Legislature out of the process entirely.
“It may be too early to even figure out if it’s going down a legislative road,” Scott said.
Dayton’s role in blocking previous reforms is cited in Frank’s opinion, which recounts the Department of Human Services (DHS) plan to relocate several inmates housed at the Minnesota Security Hospital in St. Peter to a less secure setting in Cambridge. Dayton, who had come under fire in press coverage and attacks from Republican gubernatorial candidates, halted the proposed removals until a different statute, and more funding, was in place. Through two legislative sessions, neither has come to pass. In his budget proposal this year, Dayton asked for about $7 million for annual evaluations of MSOP enrollees, and another $10 million in capital investment funds for design of new facilities, but neither had support of legislators.
House leaders seem equally uninterested in bending to Frank’s will. Rep. Matt Dean, R-Dellwood, chair of the House Health and Human Services Finance Committee, greeted the ruling with a statement saying that he would review Frank’s preliminary order, but disagrees with the ruling on its face.
“The legislature is not a party to this lawsuit,” Dean continued, “and it not under any obligation to respond.”
Indeed, Cornish said he did not plan to participate in any discussion of alternatives prior to the Aug. 10 hearing.
Sen. Tony Lourey, DFL-Kerrick, also said he was not aware of a plan to put together a specific Senate proposal before the hearing, though he pointed out that many of the possible remedies named in Frank’s order have already passed in the Senate, and with a handful of Republican votes.
“[The Senate] is trying to make sure we have a program that can meet constitutional muster, and we’re ready to do that again,” Lourey said. “It would take some money, of course, as well.”
Just how much money remains to be seen, and could involve a variety of different means, including construction of new facilities, hiring of staff and the expansion of support services. Lourey said options “run the gamut,” and could be comfortably funded even in a non-budget year, should Frank force the Legislature to act during the 2016 session.
“Building new programs takes start-up money,” Lourey said. “But over time, they’ll come into line, and be less expensive, some of these options, than what we have now.”
Roberta Opheim, state ombudsman for mental health and developmental disabilities, said the crucial point in future proceedings will be how Frank interprets the phrase “less restrictive,” which, to some, could mean placing committed individuals into halfway houses, or even designated apartment buildings within the general public, with security and mental health professionals on call.
Cornish, for his part, said he would be more interested in building “less restrictive” housing adjacent to existing facilities in St. Peter or Moose Lake.
“When I think about public safety, I don’t think about releasing dangerous sex offenders into the community,” Cornish said.
Opheim said part of the difficulty in finding “less restrictive” housing options is combatting misinformation that is widespread within the public, namely, that sex offenders have a high likelihood of reoffending. (Indeed, Cornish said a previous MSOP director had told him the detainees at St. Peter and Moose Lake “can never be cured.”) Perusing the comments on a recent Star Tribune story, Opheim said the general reaction is that previously committed individuals are still dangerous.
“Everyone is absolutely firmly convinced they will reoffend,” she said. “And that goes against years of statistical gathering. But it’s human nature to block something you don’t know about from coming into your comfort zone.”
Sen. Kathy Sheran, DFL-Mankato, chair of the Senate Health and Human Services Policy Committee, said she knew the House opposed any major reforms to MSOP, and did not want to waste her panel’s time with a hearing on MSOP reforms this past session. She said she does not envision Frank’s new ruling, or even the August hearing, as enough to force legislators to drop their hesitancy, though she said she fears what will happen if they do not.
“I really urge legislators to engage in creating a response to this, rather than throwing it back onto the court,” Sheran said. “The actions [the court] takes may be very broad-brushed, and not have the safety and security provisions around what they do.”
Even if legislators were not so reticent to take up the thorny issue — Lourey conceded that 2016’s status as an election year “plays a role” in any prospective deal — Opheim thinks the requirement to act could be delayed for some time by judicial challenges from either side.
“I think we’re in it for the long haul,” Opheim said. “Depending on where the appeals court goes, this has the potential to go up to the U.S. Supreme Court. I don’t know if they’d take it, but that wouldn’t stop someone from trying to take it there.”