Minnesota Report urges overhaul of state's sex offender program Program has not unconditionally discharged a single client in 2 decades

By Mike Mosedale The Daily Record Newswire MINNEAPOLIS - In yet another indictment of the troubled Minnesota Sex Offender Program, a court-appointed panel is calling for an overhaul of the laws and treatment protocols that have made Minnesota the nation's per-capita leader in the civil commitment of sex offenders. The 108-page report, written by a four-member team of sexual behavior experts who visited MSOP facilities in Moose Lake and St. Peter, provides some of the most detailed critiques yet of the controversial program. Over its two decades of existence, the MSOP has yet to unconditionally discharge a single client treated there - a failure that has contributed to a Kafka-esque atmosphere and, the report found, fomented "high levels of learned helplessness and hopelessness" among both offenders and staff. U.S. District Court Judge Donovan Frank, who previously described the MSOP as "clearly broken," ordered the review in connection with a pending class action lawsuit challenging the program's constitutionality. "There weren't a lot of surprises in there. This is ground we've been covering for some time," said Sen. Tony Lourey, DFL-Kerrick, who served as a member of the Sex Offender Civil Commitment Advisory Task Force. Frank previously tasked that group with identifying potential legislative fixes for MSOP. Lourey noted that many of the conclusions and recommendations in the new report are similar to those reached by the task force. While the task force's proposals bogged down at the Capitol last session, Lourey said it might be a different come January as lawmakers confront the looming possibility Frank will declare the MSOP unconstitutional and mandate changes from the bench. But is there enough time? "If Judge Frank sees some positive signs, he could wait for us. He's done it before," Lourey ventured. "Hopefully it's an issue that can be managed in a political conversation now that the election is over and we have a little breathing room. This is a program created by the Legislature. It's ours to own." Although he expressed optimism that the Senate will be able to agree on a set of bipartisan proposals to address some of the problems, Lourey withheld judgment on the prospects with the new Republican majority in the House. Don Betzold, the former state senator from Fridley who authored the 1994 law that created the MSOP, was less sanguine. "Frankly, I don't think the Legislature is going to have time to do anything. Nothing happens during the first month of the session. By the time the real action starts, Judge Frank's trial is going to be over and he's going to want to act," said Betzold, an attorney who now represents about a dozen MSOP clients. While many of his clients are hopeful that Frank will find in their favor, Betzold said he has sought to tamp down expectations of a speedy resolution. "Nobody knows what Judge Frank is going to do. I tell the guys, even if he declares the program unconstitutional, don't expect a quick release. Because if he does that, the state of Minnesota is likely to file an appeal with the 8th Circuit that afternoon and then it's going to be tied up for a few more years," Betzold said. Eric Magnuson, former chief justice of the Minnesota Supreme Court, said the bottom line in the report validated the earlier findings of the task force, which he chaired. "The focus was different than ours. It was more specific to the actual treatment programs. But the overarching evaluation of the system is precisely what we said: Too many people are dragged into the system and held for too long," Magnuson said. Like Betzold, Magnuson doubts the Legislature will have the time or inclination to act on the politically fraught subject before Frank issues a ruling. "The notion that the Legislature would abdicate governance is one that's hard to get your head around," he added. "But there was a tremendous resistance in the Legislature to doing anything last session, almost as if they would rather have the federal court make the tough decisions." But what's so bad about a judicial fix? "If you want your state government run by a federal judge, I guess there is no drawback," Magnuson said. "But the federal court is a blunt instrument. There's no fine balancing of legislative concerns. A federal judge doesn't care about budgets or priorities in government. A federal judge only cares about the Constitution." Several other members of the task force expressed similarly pessimistic views about the prospects for a fix coming out of the Capitol. "I don't think they'll get anything done," said Dakota County Commissioner Nancy Schouweiler, who said she expects Frank will order the state to establish less restrictive settings for the program's lower-risk clients. Another task force member, Michael Thompson, the director of the Minnesota chapter of the Association for the Treatment of Sexual Abusers, was more emphatic in his take. "They're not going to do a thing. Not a thing. It's a political hot potato that no one wants to touch, especially with the pending lawsuit," he said. "They're not going to do anything so the federal court will offer them cover and they can say, 'It's not our fault these guys are being released into your neighborhood." Thompson said he has spoken with several lawmakers who said there would be no meaningful action this session. He also said he agreed with the conclusions of the new MSOP report. In particular, he highlighted the recommendation that special consideration ought to be given releasing some of the 62 MSOP clients who have never been convicted of sex crimes as adults. According to the report, many of those younger patients don't meet the criteria for commitment under the Sexually Dangerous Persons Act - and may never have - but were sent to the MSOP "because they had reached 19 years of age [and] could no longer be kept in juvenile detention." In most of those cases, the report stated, sexual conduct "was used to substantiate a need for civil commitment in which officials seemingly did not know what else to do with them." "That's a pretty strong statement about the process and a pretty strong indictment of the court system," said Thompson. Thompson said blame for the MSOP's failures belong to lawmakers, judges, and prosecutors - not the MSOP staff. "They want to provide treatment that people can complete but a lot of their decisions have been second guessed," he said. Still, the report faulted some practices at the MSOP, including the requirements that clients submit to polygraph tests to progress and undergo penile plethysmograph tests. The latter procedure is used to measure arousal. The report also found that MSOP offers insufficient psychiatric services, particularly for those clients with severe mental illness. The report was authored by four experts in sexual behavior - Naomi Freeman, Michael Miner, Robin Wilson, all psychologists, and Deborah McCullouch, a social worker. Published: Thu, Nov 27, 2014