MSOP remedies: One says injunction, one says federalism

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If the state’s strategy in the MSOP litigation was to refuse to provide any suggestions for remedies for the defects in the sex offender treatment system because it was fairly confident that the judge would not shut the program down no matter what the state did, it was right.

At a hearing on Sept. 30, U.S. District Court Judge Donovan Frank said that shutting down the program would not be in the best interests of the patients. “We can’t do as they have done in some other states to just open the door and let people walk out the door,” Frank said. About six weeks ago he warned the state that its defiance could call for a more “forceful” solution.

He also said he would issue a decision on remedies within 30 days.

Frank found in June 2015, after a six-week trial, that the Minnesota Civil Commitment and Treatment Act is unconstitutional on its face and as applied by the Minnesota Sex Offender Program. The case is a class action, Karsjens et al. v. Jesson et al.

The case has now moved into the remedies phase, where the state has the opportunity to advocate for its preferred corrective action but refuses to do so, arguing that the law is constitutional and will be so determined on appeal.

In response, the plaintiffs urge the court to order broad injunctive relief and provided a comprehensive list of proposals. In their remedies brief, the plaintiffs asserted that the state and the individual defendants had waived any right they had under existing law to propose remedies and the court owed the defendants no deference in fashioning solutions.

The plaintiffs’ proposed relief included immediate risk evaluations of all current MSOP patients. The risk evaluation would determine whether the patient continued to meet the constitutional standard for commitment, appropriately could be transferred or provisionally discharged, could be housed in a less restrictive alternative and is in the proper treatment phase. The plaintiffs want the evaluations completed by Dec. 31, 2015.

That would be followed by a plan for annual independent risk evaluations, applying the same criteria as is used for commitment — that no less restrictive alternative is available.

The plaintiffs request a plan for a judicial bypass so that petitions for rehearing or a reduction in custody may be heard in a timely fashion. They also argue that the standards for discharge must be the same as the standards for commitment and that the burden of proof must always be on the state.

Further, the plaintiffs argue that the court should order that less restrictive facilities must be created and once created, monitored to be sure adequate facilities are available. The plaintiffs want the court to require MSOP to petition for reduction in custody if a risk assessment calls for it.

Further injunctive relief is sought to require the defendants to establish an intake process that ensures that patients are appropriately treated, along with a system of reviews of treatment progress. The plaintiffs also call for continuing review of the civil commitment and discharge process, experienced legal counsel for patients and ongoing training for employees and others involved in the process. Concluding, the plaintiffs request creation of a public education program about civil commitment.

The defense reaction to this comprehensive proposal is basically “no.” It made the discussion about a federal court’s Article III powers, arguing that the court’s remedies must be tailored to redress a proven constitutional violation but that the court has not determined that any particular plaintiff or class member has been harmed or is entitled to a reduction in custody. It relies on the 1977 case of Milliken v. Bradley to argue that the court can only argue narrow relief, as required by the doctrines of federalism and separation of powers. It rejects any suggestion that it has waived any rights to challenge the plaintiffs’ proposals or the court’s actions.

The defense also argues that the plaintiffs’ proposed remedies are unrealistic or impossible for the defendants to perform, because it cannot appropriate money or change legislation. It also argue that the plaintiffs’ remedies would provide individualized relief that is not available in a class action.

“Defendants are entitled to a remedial order that is appropriately limited in scope, minimally intrusive, and within the limitations of Rule 23 (b) (2), consistent with principles articulated in Milliken, Lewis [v. Casey] and Wal-Mart [v. Dukes],” argued the state in its brief.

In a reply brief, the plaintiffs characterized the defense position as “because it is too difficult to make the necessary changes, the Court should allow the constitutional violations to continue.”

About 700 people are confined in sex offender facilities in Moose Lake or St. Peter.