A few minutes after U.S. District Court Judge Donovan Frank released his long-awaited ruling on the Minnesota Sex Offender Program, Dan Gustafson was asked whether he was surprised by anything in Frank’s 76-page order.
No, said Gustafson, the lead attorney in the class-action suit that successfully challenged the constitutionality of both the MSOP and its statutory underpinning, the Minnesota Civil Commitment and Treatment Act.
Nothing?
“I thought perhaps he would deal with some more specifics about the treatment,” Gustafson finally added.
Of course, Frank had tipped his hand well in advance of the six-week trial that was the basis for the determination that the MSOP and the MCTA are unconstitutional. His prior characterizations of the troubled program as “clearly broken” and “draconian” made that seem like a foregone conclusion.
And as Gustafson observed, the problems with the MSOP — most notably, its glaring failure to unconditionally discharge a single client in more than two decades of operations — are hardly breaking news. From special task force appointed by then-Gov. Tim Pawlenty in 2005 to the 2011 report from the Legislative Auditor, warning flags about the MSOP have been hoisted time and again.
Although Gustafson and others cast Frank’s decision as an indictment of the political system, the judge was considerably more sweeping in his critique. Minnesota’s sex offender civil commitment “scheme” doesn’t merely jeopardize the credibility of the criminal justice system, he wrote, but “the credibility of the entire system, including all the stakeholders that work in the system.”
Frank was particularly pointed in his criticisms of prosecutors for routinely plea bargaining sexual assault cases and then relying on the civil commitment to ensure confinement upon the completion of the criminal sentence. Such deals are problematic when they involve Alford pleas, Frank added, because it’s impossible to advance through the MSOP treatment while proclaiming innocence.
“Such plea negotiations, with few exceptions, have only proved to be a disservice to the entire system and have rarely served the interests of justice,” he wrote. In a footnote, Frank added that in his former role as a prosecutor and as a judge he “never allowed or accepted” an Alford plea.
If Frank’s effort to spread the blame was designed to alter the political dynamics by giving everyone some additional cover, there was no indication that it worked.
In a statement released hot on the heels of the ruling, Gov. Mark Dayton vowed to defend the MSOP and re-iterated the state’s argument at trial: the MSOP is constitutional and so the Minnesota Civil Commitment Treatment Act.
“That’s what I expected him to say — the legal fight continues,” said Gustafson. “I hope that’s just a party line statement and not his real view.”
The more critical question: Do the state’s lawyers actually believe they can prevail on appeal?
The Attorney General’s office deferred comment to the Department of Human Services, which operates the MSOP. In an interview with Minnesota Public Radio, DHS Commissioner Lucinda Jesson was vague about the plans, saying only that she believes in the program is constitutional and has been consulting with lawyers about the way forward.
In the wake of ruling, Deputy Attorney General Nathan Brennaman signaled a willingness to soldier on, requesting in a letter that Frank certify the final judgment under Rule 54. That would allow for an immediate appeal on the constitutional issues before Frank gets to dig into the unfinished business — crafting remedies to the program and statute.
Not surprisingly, Gustafson opposed that effort, urging Frank to “allow the parties and key decision makers to assist the Court in fashioning appropriate injunctive relief.”
So is an appeal just an effort to buy time?
“It could be. Or it could be that they think the 8th Circuit will be more hospitable to their position,” opined Eric Janus, the president of William Mitchell College of Law and an expert on the MSOP who wrote an amicus brief for the American Civil Liberties Union.
In Frank’s analysis of the constitutional issues, Janus noted, the judge invoked a strict scrutiny standard on the grounds that MSOP and commitment statute impinge on a fundamental right – personal liberty. That was the right call in Janus view but also the likeliest avenue for appeal.
“There’s a key question of framing that going to underlie any appeal. If this is framed as an inadequate treatment case, there’s some precedent for applying a more lenient standard,” said Janus.
Still, Janus said he expects Frank’s decision will hold up in the long run – both because of the systematic nature of the judge’s analysis and a body of evidence that has grown substantially over the last two decades.
Past court rulings upholding the constitutionality of the MSOP were predicated on the state’s assurances that offenders would be treated and released.
“What’s different about the case is that there’s a 20-year history. The state says, ‘This is a legitimate civil commitment law’ but the judge looked at that history sand said it’s not. To me that’s what groundbreaking,” Janus said. “This isn’t a case about how many hours of treatment the state offers, or what type of treatment. This is a case about the broad sweep over 20 years. It’s hard to ignore that reality.”
Ryan Magnus, a Mankato criminal defense attorney and member of the state’s sex offender task force, doesn’t think the state has many promising options for appeal.
“I don’t think there’s a way to challenge any of the factual determinations of the court. Everybody agrees there are people at MSOP who shouldn’t be there. So the state’s only legal avenue is to challenge how they analyze those facts,” Magnus said. “But I don’t know how you can make with a straight face the argument that this case doesn’t involve a fundamental liberty interest.”
Even under a less stringent standard, Magnus said, he thinks both the program and statute would still be deemed unconstitutional and for many of the same reasons outlined in Frank’s order.
In the short term, Frank’s ruling created considerable uncertainty for Magnus’ MSOP clients with pending court proceedings.
“We don’t have a stay on the federal judge’s order. So as we go to trial, we’ll be applying an unconstitutional statute in and unconstitutional way,” Magnus said. “It will be interesting to figure out how we go forward. I’m sure everyone will freak out.”
In his order, Frank summoned various stakeholders — including Dayton and top legislative leaders — to his courtroom on Aug. 10 for a pre-conference hearing on potential remedies.
Is there any reason to think those negotiations won’t be derailed by the same political dynamics that have stymied past efforts?
Probably not, said Magnus, who predicted that Frank will probably use the hearing to lay out the reforms recommended by the Sex Offender Task Force and wind up imposing them by court order.
An appeal could extend that time frame — but that outcome could prove counterproductive for the state. Even before Frank’s ruling, he said many of his clients at MSOP were already being bombarded by solicitations from attorneys wanting to sue for damages.
Gustafson, who did not seek monetary damages in the class action suit, said the liability is greater now because the state can no longer deny knowledge of the constitutional issues with MSOP. “If I was bringing a damages claim, I would certainly argue that the clock started running at 9 a.m.,” he said, making reference to the release of Frank’s order.
Janus was also pessimistic about the prospects for a political solution at that pre-conference hearing.
He noted parallels with another a matter presided over by Judge Frank, the settlement of a class action lawsuit centered on the unnecessary institutionalization of the developmentally disabled. In a harshly worded ruling last month, Frank slapped down DHS over its “pattern of noncompliance” with of a proposed Olmstead Plan, which would provide for the least restrictive, community based settings for the disabled.
That doesn’t auger well for the prospects in the considerable more fraught realm of fixing the MSOP. While some of the likely solutions might not be controversial, he noted, some others — such as moving lower risk offenders in halfway houses — are radioactive.
Still, Janus heaped praise on Frank for his handling of the case.
It gives me faith in our legal system — from the consolidation of a bunch of pro se complaints to the appointment of Dan Gustafson and his firm to the trial and now this decision,” he said. “In my mind, it’s been stellar.”
MSOP Timeline
1939: Minnesota Legislature enacts Sexual Psychopathic Personality Statute.
1994: Dennis Linehan successfully challenges commitment on the grounds that the state failed to prove by “clear and convincing evidence” that he could not control his sexual impulses.
1994: In response to Linehan ruling, the Minnesota Legislature enacts the Sexually Dangerous Person statute, which, unlike the Sexual Psychopathic Personality Statute, does not require proof of “utter lack of power to control sexual impulses.”
1995: Moose Lake MSOP program opens to treat dangerous sex offenders.
2002: Amid concerns about mounting costs at MSOP and the failure to successfully release any civilly committed offenders since 1983, MSOP clinical director reports says about 25 percent of MSOP clients are appropriate candidates for supervised release.
July 2003: Gov. Tim Pawlenty issues executive order barring the release of any civilly committed offenders absent a court order.
November 2003: Alfonso Rodriguez, a level 3 sex offender released from a Minnesota prison and not committed civilly, kidnaps, rapes and murders college student Dru Sjodin.
December 2003: The Minnesota Department of Corrections refers 236 sex offenders for civil commitment.
2004 – 2008: The DOC refers an average 157 offenders per year for civil commitment, about six times the referral rate of the previous decade.
2010: State settles lawsuit brought by Elliot Holly for $408,500 after Holly was held in solitary confinement, referred to as administrative restriction, for 46 days without a hearing.
2011: Putative class action lawsuit filed arguing that the MSOP program violates the First, Fourth and 14th Amendments. The named plaintiff is Kevin Karsjens.
2012: Judge Donovan Frank refers the case to the Federal Bar Association’s Pro Se Project.
Chief Magistrate Judge Arthur Boylan orders Human Services Commissioner Lucinda Jesson to convene a task force to suggest changes in the program.
Sex offender civil commitment task force presents recommendations to the court, the department of human services and the Legislature.
2013: Robert Jeno is ordered provisionally discharged after 20 years in the MSOP.
Eric Janus and ACLU-MN file amicus brief saying that all three branches of state government have abdicated responsibility for the program.
2014: Court appointed panel says state must overhaul program
Judge Donovan Frank denies most of defendants’ motions to dismiss and warns, “If the evidence requires it, the Court will act…The time for Legislative action is now.”
2015: Testimony begins in MSOP lawsuit. Frank issues order. ..Source.. by Mike Mosedale
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