MSOP suit presents constitutional conundrum

Strict scrutiny may be down but it is not out.

Litigation over the Minnesota Sex Offender Program is not over, although the 8th U.S. Circuit Court of Appeals found the program constitutional and reversed the case, and the injunctive relief it offered, in an opinion by a three-judge panel issued Jan. 3.

Plaintiffs had argued that the program violates their right to due process both facially and as applied.

The 8th Circuit turned back the state’s claims that U.S. District Court Judge Donovan Frank was biased and that the court lacked jurisdiction.

After nearly eight months with the case under advisement, the panel said that persons committed to the sex offender program do not have a fundamental right to liberty and that the application of strict scrutiny to their constitutional claims was a mistake. Instead, the court said, the program need pass only a rational basis test, the lowest standard of review.

The panel was Judge Diana Murphy, Judge Steven Colloton and Judge Bobby Shepherd, who wrote the opinion.

Plaintiffs’ attorney Dan Gustafson said he will seek review but is considering either a petition for en banc review at the 8th Circuit or a petition for a writ of certiorari at the U.S. Supreme Court. He has filed a motion to extend the time to file a petition for rehearing en banc.

To recap: The Minnesota Civil Commitment and Treatment Act: Sexually Dangerous Persons and Sexual Psychopathic Personalities, Minn. Stat. sec. 253D, allows indeterminate commitments. Although the statue provides processes for requesting discharge, no one has ever been fully discharged from the program and three persons have received provisional discharges out of 714 committed. Minnesota has the largest per capita population of sex offenders in the nation, the Court of Appeals noted.

The three-phase treatment program provides no sex offender treatment in Phase I. The 8th Circuit said that no MSOP official could recall a patient being assigned to Phases II or III.

The plaintiff class was certified and argued that the statute was unconstitutional on its face and as applied. U.S. District Court Judge Donovan Frank found the program unconstitutional facially and as applied for reasons including the absence a meaningful discharge process or assessments of the need for continued confinement.

The state appealed, and the panel reversed, finding that committed persons who are a danger to themselves or others have no fundamental liberty interest in freedom from physical restraint. It therefore used the rational basis test to find the MSOP constitutional.

The court then pronounced the facial application of the statute satisfied because the statute provides procedures to the patients seeking relief.

The as-applied challenge failed because the U.S. Supreme Court has never found a due process right to appropriate, effective or reasonable treatment for the illness that resulted in commitment and the plaintiffs did not show the MSOP was conscience-shocking or violated a fundamental right.

The court said the U.S. Supreme Court’s opinion in 1998 in County of Sacramento v. Lewis plaintiffs must prove the defendants’ actions were conscience-shocking and violated one or more fundamental rights deeply rooted in American history and tradition and implicit in the concept of ordered liberty. To describe “conscience-shocking,” the court used the words egregious, outrageous, malice, sadism, brutal and inhumane.

Implications

Gustafson was shocked by the opinion, he told Minnesota Lawyer. Not only did the court not apply strict scrutiny, it showed no deference to the trial court when it failed to remand for consideration of the rational basis.

He also pointed out that the egregious-type case law language that the court referenced arises from circumstances where snap decisions are made, not decisions made over many years that are well-documented.

Mitchell Hamline College of Law Professor Marie Failinger, who teaches constitutional law and other topics, also pointed out that in Sacramento, the court said that what shocks the conscience depends on the circumstances. Sacramento also said that when a state takes a person into custody, it is obliged to provide decent care and protection, Failinger wrote in an email to Minnesota Lawyer.

“The opinion has implications not only for sex offenders but for anybody the state decides to incapacitate, whether he or she is a convicted criminal, a person with other mental illness or disabilities, a transient, or anyone else who creates fear in a community,” Failinger wrote.

“The states and now the Eighth Circuit have decided that some individuals are so unlike the rest of us that they can be made permanent pariahs and deprived of their liberty no matter whether they do change or can change with professional help,” she continued

Mitchell Hamline College of Law Professor Eric Janus, who has expertise in the field and has written about mental health and the law, said that the court is not asking the right question, which is under what circumstances can the it use a civil process to deprive a person of liberty. The state may not use civil commitment for punitive reasons, he said.

The state’s intent should be ascertained from its conduct, Janus said. If it is not punitive, it should be a bona fide commitment program. “You can’t say it’s a bona fide commitment program if no one is released,” he said.

Kelly Mitchell, director of the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota, noted that she and everyone else on a court-created sex offender task force agreed that the program isn’t working. She noted that the court did not address how the treatment programs or the discharge procedures are actually applied.

Even if the state can “rest on its laurels and say the [patients] are dangerous, if you’re not getting treatment and don’t know what to do to get out, [the state] can’t say the program is not punitive,” Mitchell said.

Lawyers in the state attorney general’s office could not be reached for comment. In its brief, it argued that a “punitive” analysis does not apply to substantive due process challenges to state commitment claims. It also argued that the Minnesota Supreme Court has found the commitment legislation civil and not punitive.

The state argued that strict scrutiny does not apply. Once a person is committed, the applicable standard is whether the confinement bears a reasonable relation to the original reason for commitment, it said. That standard reflects the necessary balance between public safety and the rights of the committed patient, the state argued.

The state’s reduction in custody process satisfies the reasonable relation standard, making the law facially constitutional, the state wrote.

The state also said that the plaintiffs’ as-applied claim is really a criticism of the administration of the MSOP, but “[t]he evidence presented at trial showed that MSOP is a well-run therapeutic environment, with fulsome procedural protections available to committed individuals who seek a reduction in custody.”  The shock-the-conscience test is not met, it said.

There is no fundamental right to effective treatment or a less restrictive alternative, the state argued, but added that it does have a transitional treatment facility for clients beginning a reintroduction to society.