Guest post by Jon Brandt, MSW, LICSW
|U.S. District Court Judge Donovan Frank|
The case began modestly two years ago as a pro se complaint by about a dozen detainees at the Minnesota Sex Offender Program (MSOP).* The Federal District Court for Minnesota determined the case had merit, appointed counsel, and in 2012 Judge Frank certified it as a class action. At a hearing last Wednesday, Dan Gustafson, lead attorney for the plaintiffs, argued motions alleging that civil commitment as administered in Minnesota is unconstitutional.
An inauspicious startWhen the court convened there was a sparse audience that included a few families of MSOP clients, a handful of reporters, and several professional stakeholders. Conspicuously absent were any plaintiffs. Perhaps there’s some irony in the fact that, in 20 years, not only has no one ever been fully discharged from MSOP, apparently all current clients are too dangerous for any of them to be shackled and accompanied by security personnel to a federal courtroom to hear arguments on the conditions of their own confinement. Given that courtrooms are designed to contain dangerous people, whether the decision to exclude clients was made by executive or judicial authorities, it seems like a missed opportunity to allow some representative plaintiffs to bear direct witness to the wheels of justice.
The hearing had an inauspicious start for the 698 plaintiffs civilly detained 90 miles away – the audio feed via phone lines failed. So, after waiting 15 years for the courts to reconsider their plight, the plaintiffs missed the first hour of legal arguments. When the audio connection was finally restored, Judge Frank assured wary plaintiffs that the technical problems were not deliberate, and personally took responsibility.
The hearing began with attorney Gustafson arguing for “declaratory judgment,” or a legal finding that the state’s civil commitment program is operating in an unconstitutional manner. He cited case law that clients have a constitutional right to rehabilitation and claimed that the program breaches civil liberties and offers neither adequate rehabilitation nor acceptable living conditions.
No one ever released
|Detainee at Moose Lake MSOP facility|
Gustafson seemed amused that the defense was making his case. The fact that no one is released is strong evidence, he asserted. He pointed out that nearby states have far better track records. Wisconsin, with demographics nearly identical to Minnesota’s, has civilly committed only 351 people, and nearly half are now on either conditional or full release. Iowa has committed only about 103 people, and about 30 of those have been provisionally or fully released. He pointed out that treatment which was originally estimated to be completed in 32 months is now anticipated to last eight to nine years. Not a single one of the more than 700 individuals (including one female) who have been detained has ever completed the treatment program, and only one is on conditional release.
The plaintiff next argued for a court order mandating that each detainee be individually evaluated to determine whether he might safely be released to a “less restrictive alternative,” or LRA.
Judge Frank peppered the hearing with comments and questions that frequently interrupted attorneys on both legal teams, and also gave clues to his persuasion. Noting that Justice Kennedy was the swing vote in the 5-4 ruling in Kansas v. Hendricks, he read a passage from Kennedy’s concurring opinion whereby Kennedy cautioned that “an improvident plea bargain” by the criminal justice system cannot be remedied by the civil commitment system, and that retribution is exclusively within the domain of criminal justice. Judge Frank also raised concerns about 18 infirmed clients (one who is 91) who require assisted living and questioned the “dangerousness” of such relatively incapacitated clients. He also questioned conditions of confinement that mimic prison. When the state’s attorney argued that conditions of criminal versus civil confinement had been decided by the US Supreme Court in the 1982 Youngberg v. Romeo case, Judge Frank interrupted with, “No, it wasn’t… but continue.”
Judge Frank expressed concern that most of the clients at the MSOP were still in the first phase of treatment, and twice pointed to his understanding that treatment progress is not only slow but that some clients are apparently sent back to redo previous phases. He also seemed concerned that detainees get less treatment than sexual offenders incarcerated in state prisons. He pondered rhetorically, “How much treatment is enough,” and questioned how the “Youngberg standard” of professional judgment might determine completion of treatment.
Motion for federal oversight
If Judge Frank grants the first motion, finding conditions unconstitutional, the other two motions might be automatic -- MSOP could be put under federal supervision in a similar manner as the state of Washington from 1994 to 2007.
Judge Frank confirmed that on December 6 he appointed four sex offender treatment experts to guide the proceedings, under Federal Court Rule 706 . The four experts are:
- Mike Miner, Professor and Research Director of the Program in Human Sexuality at the University of Minnesota Medical School
- Naomi Freeman, who leads New York’s unit for Strict and Intensive Supervision and Treatment that manages civilly committed individuals outside of secure facilities
- Deborah McCulloch, director of Wisconsin’s sex offender civil commitment program, and
- Robin Wilson, former clinical director at the Florida sex offender civil commitment program from 2006 to 2011, during which time there was a class action and settlement
Events may force actionWednesday’s motions, the critical reports, and two other events in 2013 will likely force Judge Frank to act soon. Last summer Dr. Grant Duwe, chief researcher for the Minnesota Department of Corrections, published research that challenges the government’s foundational claim that civil detainees are “highly likely” to reoffend. Duwe’s research indicates that most of the detainees are highly likely to NOT reoffend.
Then, last month, Minnesota Governor Mark Dayton issued an executive order that continued the eight-year moratorium of his predecessor -- that there will be no further releases of clients from MSOP, except by court order. With this abdication of executive oversight, all three branches of the state government seem to be in perpetual paralysis.
Minnesota’s government is managing the Sex Offender Civil Commitment program (SOCC) like holding a wolf by the ears -- don’t want to hold on and afraid to let go. Modest reforms that are in progress at MSOP are being sabotaged by systemic failures. Clinical staff have the impossible job of trying to maintain the integrity of endless treatment goals for clients trapped in a treatment paradox and have come to realize that the promise of rehabilitation is disingenuous.
|Legal scholar Eric Janus|
Judge Frank indicated that he will accept a joint amicus brief from Janus and the ACLU, due Dec. 27, and will rule on the motions within 60 days.
My take is that the federal courts can no longer ignore repeated judicial admonishments; if the SOCC begins to look like retribution or prison in disguise, the courts will intervene. With precedence in the state of Washington, Judge Frank seems poised to put MSOP under federal supervision. Depending on the strength of any finding of “unconstitutional,” the ruling could have far-reaching implications that echo around the United States.
Relevant legal cases:
*Karsjens, et al. v. MN Department of Human Services, et al., CV 11-3659 DWF/JJK
Foucha v. Louisiana, (90-5844), 504 U.S. 71 (1992).
Strutton v. Meade, (10–2029) 668 F.3d 549, US Court of Appeals for the Eighth Circuit (2012)
Youngberg v. Romeo, (80-1429) 457 U.S. 307 (1982)
Call v. Gomez, 535 N.W.2d 312, Supreme Court of Minnesota (1995)
Seling v. Young (99-1185) 531 U.S. 250 (2001)
Jon Brandt is a clinical social worker in Minnesota, for 35 years working in the prevention of sexual abuse. He has provided evaluations, treatment, and supervision to several hundred sexual offenders, and provided professional consultation and training to colleagues. He is a Clinical Member of the Association for the Treatment of Sexual Abusers (ATSA) and is a blogger for ATSA’s website, Sexual Abuse: A Journal of Research and Treatment. In February 2012 his post, “Doubts about SVP Programs,” was re-blogged here.