Minnesota's sex offender program is unconstitutional

The Minnesota Sex Offender Program is unconstitutional, according to a ruling published Wednesday by federal judge Donovan Frank. Judge Frank found the program does "not pass constitutional scrutiny." The ruling means major changes are likely coming to the MSOP, including the release of hundreds of the state's sex offenders.

"This order highlights the complete failure of the political system in Minnesota with respect to these important issues but more importantly, it reaffirms that all people, no matter how disliked they are or how reprehensible their prior conduct, are entitled to constitutional protection" said Dan Gustafson, lead attorney for the plaintiffs.

Read the complete text of the decision at http://www.fox9.com/link/745393/msop-order.pdf

Next step

All involved parties will meet on August 10 to decide how to fix the sex offender program. The judge recommends the governor and legislative leaders be in attendance, as well as corrections and human services leaders.

Gov. Mark Dayton statement

"We continue to believe that both the Minnesota Sex Offender Program and the civil commitment statute are constitutional. We will work with the attorney general to defend Minnesota's law. As the federal judge has not ordered any releases, there will be no immediate changes to this program as a result of this ruling."

What the program looks like now

MSOP has been the subject of dissent for years because it involves a life sentence at its facilities in Moose Lake and St. Peter once prison sentences have been served. Minnesota has the highest number of civilly committed sex offenders per capita among 20 states that have similar programs. Two of Minnesota's are currently on provisional discharge and under intense supervision.

The class-action lawsuit argued there are offenders who could be freed or transferred to other facilities with less stringent restrictions, but the state contends the program meets all constitutional requirements. In the program's 21-year-history, not one offender has been fully released. To compare, in Wisconsin, they've unconditionally discharged 118 since 1994.

Judge Frank found the program to be a "punitive system that segregates and indefinitely detains" and that "it is undisputed that there are committed individuals who meet the criteria for reduction in custody."

One reason Minnesota is so different is what a state audit found in 2011, which says "Minnesota lacks reasonable alternatives to commitment at a high-security facility." The other reason is that politicians won't touch the sensitive issue.

Candidates for release

There are 67 potential candidates for release who have reached the final phase of treatment within the program. There are also 67 people in the program who were committed for offenses committed when they were juveniles. There are 78 over age 65, and some have diseases that have rendered them physically unlikely to re-offend, experts said during the bench trial.

"Importantly, provisional discharge or discharge from the MSOP does not mean discharge or release without a meaningful support network, including a transition or release plan into the community with intensive supervised release conditions," Judge Frank wrote.

16 changes to be considered

Requiring risk and phase placement reevaluation, with all deliberate speed, of all current patients, starting with the elderly, individuals with substantive physical or intellectual disabilities, and juveniles.

Requiring periodic, independent risk assessments to determine whether the clients still satisfy the civil commitment requirements and whether the treatment phase placement is proper.

Requiring and creating a variety of alternate less restrictive facilities.

Revising the discharge process, including the possibility of using a specialized sex offender court with authority to request information, order transfer, provisional discharge, or discharge, and order appropriate conditions and supports for individuals transitioning to the community.

Requiring the MSOP to promptly file petitions for any person the MSOP believes does not meet the criteria for civil commitment upon arrival, may no longer meet the criteria for civil commitment, or should be transferred to an alternative facility, including for individuals that cannot be well served at the MSOP (for example, due to an individual's physical or intellectual disability).

Requiring the MSOP to proactively and continuously develop and adjust specific treatment and discharge plans, no matter which phase a person is in.

Requiring the MSOP to provide annual notice to all clients of the right to petition and provide assistance with the petitioning process dependent upon the client's needs.

Requiring the state to have the burden to prove that the committed individuals meet statutory and constitutional standards for continued commitment and placement."

Requiring the statutory standards for discharge and commitment be the same.

Requiring a judicial bypass mechanism.

Requiring changes to the civil commitment process to correct systemic problems and to ensure that only those who need further inpatient treatment and supervision for a sexual disorder and pose a danger to the public are civilly committed, taking into account an individual's age, adult convictions, severity of adult convictions, and physical or intellectual disability.

Requiring the provision of qualified defense counsel and professional experts to all petitioners.

Requiring ongoing external review and evaluation by experts to recommend changes to the MSOP treatment program processes, including an overview of the structure of the treatment program and phase progression processes.

Requiring continued and specific training for all employees of the MSOP and for those people involved with the petitioning, commitment, or discharge process.

Requiring a plan for educating the public on civil commitment, civil commitment alternative facilities, provisional discharge conditions, and risk of re-offense data, among other things, and requiring funding for such education.

Appointing a Special Master to monitor compliance with all of the remedies.

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