Legal scholar warns about Minnesota Sex Offender Program’s failures

3-4-2010 Minnesota:

In 1996, the Minnesota Supreme Court ruled that the state’s law permitting the indeterminate commitment of sexual predators was constitutional. In reaching that determination, then-Chief Justice A.M. “Sandy” Keith stressed that the program was primarily therapeutic rather than punitive.

Specifically, he cited evidence that patients enrolled in the state’s sex offender program could complete the four phases of treatment in a mere 32 months before being released back into society. Keith concluded that the appellant in the case, Dennis Linehan, had not offered any evidence that the treatment program “is a sham, or even that such treatment is ineffective.”

More than 13 years later, there would seem to be abundant evidence that the state’s therapeutic regime is a sham — or at least a failure. Despite the state’s assurance that patients could complete the therapy program in less than three years, not a single person has been released from what eventually became known as the Minnesota Sex Offender Program (MSOP).

Consequently, the number of individuals civilly committed at facilities in Moose Lake and St. Peter has skyrocketed. In 2000, there were 149 sex offenders enrolled in the program, according to the Department of Human Services, which runs the MSOP. By the end of 2009, the population had risen above 500. Within six years there are expected to be nearly 1,000 individuals committed by the state as sexual predators.

The costs associated with the program have grown almost as quickly. Since 2004, the budget for the MSOP has more than tripled, from $20.4 million to $64.8 million. It costs more than four times as much to house someone at the sex offender lock-up as it does to keep them in prison.

The continuous growth of the MSOP has become a point of contentious debate during the current legislative session. Gov. Tim Pawlenty wants $89 million for a planned expansion of the Moose Lake facility, which is expected to run out of beds within three years. Some Democrats have questioned the wisdom of continuing to pour money into a program that’s failed to produce any results, and the DFL-controlled Legislature didn’t include funding for the projects in the $1 billion bonding bill passed by the House and Senate last month. Pawlenty vowed to veto the measure, in part owing to the lack of funding for the sex offender facility. Democratic House Speaker Margaret Anderson Kelliher used a parliamentary move to keep the bonding bill from reaching Pawlenty, hoping that a “cooling off period” would restart negotiations.

This latest funding debate over the MSOP once again raises questions about the program’s constitutional soundness. If the civil commitment statute was originally approved by the courts based on the premise that it was designed to rehabilitate the state’s most dangerous sexual predators, what happens if it’s unequivocally shown that the state has failed to follow through on that mission?

“We don’t know whether it has been able to rehabilitate anyone, because no one’s had the opportunity to try it,” says Eric Janus, dean of William Mitchell College of Law, who has spent more than a decade contesting Minnesota’s civil commitment statute in the courts. “What does that tell us about the real, true underlying purpose of the law?”

Most politicians — and more importantly, their constituents — aren’t particularly concerned about the constitutional rights of the state’s most heinous sex offenders. But the continuing failure of the MSOP to successfully rehabilitate individuals enrolled in the program raises the specter that the courts could eventually intervene. Ultimately that could threaten the very ability to indeterminately detain violent sexual predators.

“I think there’s some danger that, if the matter is presented properly, a court could now say that the constitutional foundation has crumbled,” says Janus.

There is some evidence that courts in Minnesota are growing skeptical of the sex offender program. Olmsted County District Court Judge Kevin Lund has repeatedly questioned the therapeutic intentions of the program. Two years ago he refused to commit a convicted sex offender on grounds that the MSOP had demonstrated no ability to rehabilitate individuals.

“These facilities are nothing more than detention facilities,” Lund wrote at the time.

Last year, the Olmsted County judge similarly granted an appeal in the case of Jesus Travis. Janus was enlisted to write a legal brief on the sex offender’s behalf. The gist of his argument was that the state had failed to follow through on promises to treat individuals enrolled in the MSOP.

“Travis now claims that the promises are bankrupt — systematically, pervasively, and intentionally,” Janus wrote. “Just as the courts inferred a non-punitive purpose from these fulsome promises, so now should the courts infer a punitive purpose from their betrayal.”

The Minnesota Court of Appeals was unmoved by this legal argument. In June, the court rejected Travis’ appeal and sent the case back to Olmsted County.

There’s also been some recent legal heat for the MSOP in federal courts. Wallace Beaulieu, who is involuntarily enrolled in the program, originally filed a pro se lawsuit in 2007 arguing that his civil rights were being violated and that conditions at Moose Lake were tantamount to imprisonment. Among Beaulieu’s specific complaints: full-body strip searches and confinement in shackles. After a federal judge determined that Beaulieu’s complaints might have merit, the Minnesota chapter of the American Civil Liberties Union (ACLU) was enlisted to recruit lawyers for the case.

“We’re not saying shut the program down,” says Teresa Nelson, an attorney with the ACLU. “We’re not saying release the plaintiffs. It’s not a challenge to the overall program. It’s a conditions challenge.”

Despite these recent legal tremors, the MSOP is highly unlikely to be invalidated by the courts anytime soon. Judges are no more eager than other public officials to stick their necks out for sexual predators, and there is abundant case law backing the legal soundness of civil commitment programs. In 1997, the U.S. Supreme Court ruled that a Kansas statute passed constitutional muster, and it has ratified that viewpoint in multiple ensuing cases.

“It will have to be raised in the right context and at a time when the court feels receptive to re-examining its earlier decisions,” says Janus. “I don’t know when, if ever, that will be. There’s a huge amount of resistance to opening that can of worms.”

Another impediment to challenging the bedrock constitutionality of the civil commitment statute is cost. Such a legal battle would likely take years and is unlikely to look particularly enticing for an attorney working pro bono.

“It would be a very expensive undertaking,” says Nelson. “It would be very difficult. It’s going to require a lot of expert witnesses to fully review the program and the treatment that’s offered.” ..Source.. Paul Demko