Judge on MSOP: State is ‘burying head in the sand’

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U.S. District Court Judge Donovan Frank remains unimpressed with the state’s continued defense of the “deeply systemic problems” at the Minnesota Sex Offender Program, saying that state is “rehashing arguments” already rejected at trial.

In an interim order released Oct. 29, Frank laid out a series of remedial fixes aimed at giving civilly committed sex offenders a chance at life outside the concertina wire of the MSOP’s two prison-like facilities in Moose Lake and St. Peter.

To that end, the judge has ordered full risk assessments of the all 700 offenders in the program. If the evaluations don’t demonstrate the need for continued confinement at the MSOP, Frank wrote, offenders must be discharged or released to less restrictive settings.

“By not doing these assessments, Defendants are essentially burying their heads in the sand rather than doing what is required of them to run a constitutional program — make sure that those committed continue to pose a risk to the public,” wrote Frank, who earlier this year ruled that both the MSOP and the Minnesota Civil Commitment and Treatment Act are unconstitutional.

Attorney Dan Gustafson, who represented offenders in the class-action lawsuit that prompted that ruling, called Frank’s interim order a good first step.

“The court has said the state has got to do regular evaluations of these folks to make sure they satisfy the criteria for commitment,” Gustafson said. “I think the other thing that’s really important about this order is the part where the judge says when you find somebody who doesn’t meet this criteria, you must move to put them to a less restrictive alternative or release them, depending on what the independent evaluator finds.”

Lawyers for the state quickly filed a notice of appeal with the 8th U.S. Circuit Court of Appeals, and Gov. Mark Dayton said he hoped Frank would stay his ruling pending the appeal

That hardly came as a surprise, though it did earn some across-the-aisle applause from Rep. Tara Mack, R-Apple Valley.

“Our top priority remains keeping Minnesota families safe,” said Mack, the chair of the House of Representatives Health and Human Services Reform Committee said. “We believe the Minnesota Sex Offender Program is constitutional, and support efforts by the governor and attorney general to seek an appeal and stay of the judge’s ruling.”

If that fails, the state will have to comply with some pretty tight deadlines.

Under Frank’s order, the state has 30 days to complete new evaluations for six individuals who had previously been designated for transfer to a less restrictive facility, along with two others who experts at trial said did not belong at the MSOP. (Those experts recommended that Rhonda Bailey, the MSOP’s sole female offender, be transferred and that another individual, Eric Terhaar, be fully discharged).

Frank gave the state 30 days to promulgate a detailed plan for re-evaluating other low-risk offenders in the MSOP, a cohort that includes the elderly, the disabled and 67 individuals in the program who were never convicted of a sex crime as adults. Under the order, the state needs to submit a detailed plan for evaluating everyone else in the MSOP within 60 days — and complete those reevaluations by the end of 2017.

In a nod to perennial complaints about lengthy days in processing petitions for release or transfer, Frank ordered that all Special Review Board and Supreme Court Appeal Panel hearings must be conducted within 120 days of the filing of the petition.

“Defendants must make the implementation of these remedies their top priority and must implement these processes in an expedited fashion to quickly resolve the constitutional infirmities at the MSOP,” Frank wrote.

Frank also lamented the inability of the state’s political leadership to address the problem and pushed back against the state’s contention he is overstepping his authority. If the state doesn’t fully comply with his interim order, Frank reserved the right to shut down the program completely, although he emphasized that he hopes to avoid such “a drastic solution.”

In a footnote, he added that he was “particularly troubled” by the prospect of releasing individuals “without proper transitional services in places to ensure that these individuals are prepared to live outside an institutionalized setting.”