When U.S. District Court Judge Donovan Frank ruled that that the Minnesota Sex Offender Program is unconstitutional, he may well have set into motion a radical overhaul of Minnesota’s use of civil commitment to lock away sex offenders.
But if change is coming for the MSOP, for now seemingly insurmountable procedural obstacles for offenders seeking discharge remain as firmly entrenched as ever.
That dynamic was on display at the Dakota County Government Center in West St. Paul on June 19 — two days after Frank’s decision came down — as a special three-judge Supreme Court Appeal Panel took up the case of MSOP client Lawrence Joseph Fisher.
The 64-year old Nashwauk man served a little over three years in prison after pleading guilty to fourth degree sexual assault in 2000. He was subsequently committed to the MSOP, where he has remained for over a decade.
Fisher didn’t utter a word in the course of the three-hour hearing, as attorneys and assorted experts sparred over his fate.
Dr. Mary Kenning, a court-appointed forensic psychiatrist, testified that Fisher no longer meets the criteria required for initial commitment — “the highly likely to reoffend” standard — but nor does he meet the criteria for full discharge.
“I don’t think he needs to be behind razor wire to continue to make progress,” she said.
Despite evidence that Fisher has suffered recent cognitive declines — possibly related to past alcohol abuse or a reaction to medication for bipolar disorder — she testified that Fisher could be placed in a less restrictive setting.
The two alternatives: a transfer to Community Preparation Services — a less restrictive facility operated by the MSOP where patients are afforded greater freedom of movement but remain under close supervision — or a provisional discharge to a group home and outpatient therapy.
Kenning said Zumbro House — a nonprofit that provides supportive housing for mentally ill and disabled people who have high security requirements — “would be a great facility” for Fisher. “Many people like him are managed in the community today,” she said.
Dakota County District Court Judge Karen Asphaug pressed Kenning on the apparent inconsistency between that endorsement for provisional discharge with the recommendations in Kenning’s written report to the panel, which was submitted just three days earlier.
“I suppose it’s a question of supporting in in the abstract or in the real world,” responded Kenning. While Fisher is a suitable candidate for Zumbro House, she said the nonprofit probably would not accept him at the moment.
Asphaug asked why.
Because the MSOP staff isn’t supporting Fisher’s petition for provisional discharge, Zumbro House — which contracts for clients with the Department of Human Services — doesn’t “want to risk getting sideways with program,” she explained.
Additionally, she said Zumbro House might require that Fisher wait longer because of concerns over a nonviolent verbal altercation he got in with another MSOP client in April.
Ryan Magnus, Fisher’s attorney, told the panel it’s virtually impossible for petitioners like Fisher to clear all the existing hurdles for discharge. Without their approval, he said, Fisher can’t secure a bed in a group home. At the same time, he pointed out, the panel can’t approve a discharge plan if Fisher doesn’t have housing lined up.
On top of that, Magnus said, Fisher faces another Catch-22: Because he has not completed a third phase of treatment, the MSOP won’t support his petition for provisional discharge.
“If you don’t complete treatment — even if your risk is considered so low that there is no reason you couldn’t be in the community — you still have to go through the program. That’s been one of the disconnections between the MSOP’s programmatic requirements and the law,” Magnus said after the hearing.
Jennifer Ketz, the director of Lighthouse Psychological Services, testified that Fisher would be a good fit for her organization, which provides outpatient counseling services to approximately 85 low functioning sex offenders.
She said many of those clients have similar profiles as Fisher and live in secure group homes such as Zumbro House without posing undue risk to the community.
Following the testimony, Assistant Attorney General Kristy Cariveau and Assistant Itasca County Attorney Mary Evenhouse both moved that the appeal panel dismiss Fisher’s petition.
Cariveau pointed to the lack of support from MSOP staff and Fisher’s cognitive decline, which she said presented “a new issue” of concern. She characterized Kenning’s testimony as “wishy-washy” and “thoroughly hollow.”
After conferring, the appeal panel returned with its verdict.
Despite the apparent contradictions between Kenning’s testimony and her report to the panel, the panel found there is sufficient evidence to conduct a second hearing on motions for provisional discharge and transfer to CPS. At that hearing, the state will present its arguments for keeping Fisher in the MSOP.
The panel outright dismissed Fisher’s petition for a full discharge, although Asphaug added the proviso that it could be revisited should the state “fail to comport” with a finalized judgment in the federal class action lawsuit brought by the MSOP clients.
It remains unclear when that might happen.
In court papers, Deputy Attorney General Nathan Brennaman formally requested that Judge Frank finalize his judgment, which would allow for an appeal to the 8th Circuit Court of Appeals and potentially forestall the imposition of remedies from the bench.
Dan Gustafson, the lead attorney for the plaintiffs, said the state’s push for an “unusual interlocutory appeal” is little more than yet another delay tactic.
“The defendants have had their day in court during a nearly six-week trial and the court has resoundingly rejected their positions,” he said. “It is time for the defendants to move on from this litigation and discharge their oath to uphold the Constitution by working together with the court to solve these problems.”
In an order issued on Tuesday, Frank told the two sides to submit briefs on the issue of an immediate appeal by July 1.
Dayton vows to attend hearing for sex offender program
Gov. Mark Dayton said Wednesday he will attend a federal court hearing over possible changes to Minnesota’s embattled sex offender program, even if it means postponing a trade mission to Mexico.
A judge ruled that the state’s secure civil confinement program for more than 700 offenders is unconstitutional. U.S. District Court Judge Donovan Frank summoned Dayton and other state leaders to his courtroom on Aug. 10 to begin fashioning a remedy.
Dayton said he is seeking to have the hearing date moved but he will attend rather than go on the trade trip if the two overlap. The Democratic governor said he believes the program is constitutional. He also favors an appeal of the ruling if one is allowed at this stage, which is uncertain because Frank has not issued a final order.
The sex offender program involves people who are indefinitely detained in a medical setting behind razor wire in St. Peter or Moose Lake once their prison sentences are complete. Frank hasn’t ordered any offenders be released at this stage, but said in his ruling that such an action remains a possibility.
Dayton has recommended changes to the program during recent legislative sessions, including a funding request this year to start building facilities with fewer patient restrictions as offenders move into the later stages of treatment. None of those proposals have survived.
For now, Dayton said he is not inclined to call a special session to address the issue, but he doesn’t think lawmakers will be able to put off tough changes for long.
“In terms of galvanizing the Legislature into some action, it’s going to be expensive, it’s going to be unpopular and, from my standpoint, undesirable,” Dayton said.