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11-3523 Hecker v. Seaver, appealed from District of Minnesota, Loken, J.

Closed session yields no resolution on sex-offender program

The sight of political press awaiting the end of a meeting between Gov. Mark Dayton and legislative leaders, as happened Monday, reminded Senate Majority Leader Tom Bakk of similar scenes at the end of this year’s legislative session.

When last they clashed, the Legislature and Dayton were quarreling over budget appropriations and policy changes that spilled out of the 2015 session. At that time, a majority of the House and Senate had managed to reach agreements, if just barely, and the administration stood apart, trying to hold the line.

On Monday, the same parties were called back together to debate just one item: possible reforms to the Minnesota Sex Offender Program (MSOP). It’s a thorny topic, perhaps the greatest single-issue driver of anxiety around the Capitol. This time around, the governor and the House, with its Republican majority leadership, are aligned, while a bipartisan group of senators are pulling in the opposite direction.

The senators have a key ally on their side, though: U.S. District Court Judge Donovan Frank, who has already ruled that the current system, with its high rate of civil commitment intake and only a handful of attempts at releasing offenders, is unconstitutional.

Dayton and Attorney General Lori Swanson disagree, and they entered Monday’s meeting with a plan to negotiate, and offer solutions, while still planning to appeal the judge’s ruling.

At issue is the contention by enrollees that MSOP does not allow for successful treatment and release to less restrictive housing than at the state’s St. Peter and Moose Lake security hospitals. The current population of 700-plus committed persons includes more than 70 juveniles, a number of elderly or disabled and a handful of adults who agreed to be committed without being convicted of a violent or sexual offense.

According to Sen. Ron Latz, DFL-St. Louis Park, William Mitchell College of Law professor Eric Janus estimated that as many as two-thirds of the inmates could be considered for less restrictive or “transitional” settings, with some receiving GPS monitoring via ankle bracelets and in-home visits from treatment specialists.

Dayton said he agreed that some, especially the elderly or infirm, could qualify for supervised release to off-site facilities, but he indicated he would still take a conservative approach on those cases.

“I don’t ever want to look a parent in the eye, or a spouse, and say that because of actions that were taken, that person’s family member was subjected to the kind of atrocities that we’ve seen on the record,” Dayton said.

At the time of the meeting, only three men had ever been processed for release in the MSOP system. Two remain under supervised released status, while the third was eventually recommitted, though he had not reoffended. On Tuesday, a three-member court ruled that a fourth man, 68-year-old Benjamin Gissendanner, would be granted provisional release under strict monitoring on Tuesday, according to the Associated Press. Gissendanner was convicted on multiple rape charges dating back to the 1970’s, and had been civilly committed in 1993.

Department of Human Services Commissioner Lucinda Jesson, who has backed Dayton in his belief that the current outtake system is constitutional, originally opposed relocating Gissendanner to a less restrictive facility in the Rochester area, but later changed her mind. In February, Jesson wrote that his “treatment has adequately addressed his dynamic risk factors,” the AP reports.

The closed-door conference on Monday was meant to bring the various parties together and seek common ground on potential remedies. Of those invited to participate, only Dayton emerged with a detailed plan. Dayton released a statement which he had also given inside the meeting, spelling out two reform proposals.

First, Dayton would support biennial reassessments of civilly committed individuals, whose estimated risk to the community would then be passed to “DHS experts and the judicial branch” for further review, and possible release to another facility or setting. That process would come with an estimated total cost of about $7 million annually, including a provision for legal counsel for the enrollee.

Dayton also pitched the construction of new facilities to house offenders in need of “nursing home care” or with “cognitive limitations,” who are less likely to reoffend, including the 33 MSOP enrollees age 70 or older. The administration estimated between $10 million and $15 million annually for construction costs, either for brand-new buildings or the retrofitting of existing nursing homes, plus permanent staffing and facilities maintenance.

Both House Speaker Kurt Daudt and Bakk said they could not speak for their respective bodies, either during the meeting or outside the courthouse, but each said his attempt at reforming MSOP would start by revisiting legislation already entered. On the House side, Rep. Tony Cornish, R-Vernon Center, chair of the House Public Safety Finance and Policy Committee, has generally taken a dim view of the prospect of allowing civilly committed people to re-enter the general population.

Daudt said that he personally agrees with the Dayton administration that the current system is constitutional and that any remedy would have to be centered on public safety.

The Senate, meanwhile, passed a reform bill in 2013, with several Republican votes, but has not revisited that proposal since, citing unwillingness by DFL and GOP majorities in the House. While each participant in Monday’s meeting said the setting was open and congenial, the prospects for changed minds seemed poor. Sen. Warren Limmer, R-Maple Grove, who has backed Senate bills to begin changing MSOP, said that the interaction with Frank did not seem like “the oracle has spoken” and that the problem remains “complicated.”

In keeping with their different approaches to fixing the issue, the groups held different interpretations of Frank’s timeline for corrective action. Dayton said Frank “seemed to indicate” that addressing MSOP could require a special session of the Legislature, though Daudt thought the full appeals process would not have played out before the start of session next March.

Bakk said he had raised the prospect of a special session directly during the meeting, asking Frank if the Legislature could wait until the 2016 regular session. Bakk said the judge gave something of “a long answer” before saying, simply, “No.”

Bakk added: “It doesn’t matter what I favor; only the governor can call us in [for a special session].”

Before that happens, Dayton will call for the case to be thrown out altogether. Frank is expected to issue a formal order for remedy within the next month or two, at which point the administration could file its appeal. Though it is within Frank’s power to act unilaterally, Daudt said the judge is “a bit limited in what he can order the Legislature to do,” as any reform involving new spending would require legislative approval.

Cornish said the key question is where the more independent housing would be sited, saying his own district has already offered “huge pushback” to the thought of housing for released offenders.

“So far, in my rural-ag[ricultural] district, there’s no appetite for that whatsoever,” Cornsih said. “The problem we face is … in talking to other legislators, they’ve got the same pushback as I do.”

Dan Gustafson, the lead attorney for the class-action plaintiffs enrolled in the program, agreed that the risk of re-entry among one’s constituents remains the major sticking point.

“Even people who think this problem should be solved,” Gustafson said, “don’t want it to be in their town. And if it has to be in their town, they don’t want it in certain parts of their town.”

Public education, and spending for that need, received “considerable” attention on Monday, according to Bakk.

“I think the public will understand … but I do think it’s going to take real resources to communicate,” Bakk said, indicating the need for specific outreach to sexual assault victims and their families. He added: “It’s just not as easy as just dumping people back into the street.”


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