After Supreme Court passes, what's next for sex offenders?

Judge declared program unconstitutional in 2015, calling it ‘punitive scheme’

By Steve Karnowski
Associated Press

MINNEAPOLIS (AP) — When the U.S. Supreme Court recently declined to hear a challenge to the constitutionality of Minnesota’s sex offender program, it relieved the pressure for major near-term change in a program that confines over 700 people who’ve finished their prison sentences. Only rarely is anyone released.

Here’s a look at a program that is often opaque to the public, and at the handful of people who — at least on paper — may have a shot at release sometime soon:



It now houses 720 people who’ve been civilly committed to prison-like facilities in Moose Lake and St. Peter. Only one man has ever been fully discharged from the treatment program, and that didn’t happen until last year.

Eight others are on provisional discharges, at halfway houses, group homes and other heavily supervised community settings that could be their last stop before full release. Nothing is guaranteed. Most didn’t get to take that tentative step toward freedom until recently.

Of the 301 at the St. Peter campus, 89 have earned their way into a potential pathway to release called Community Preparation Services. It’s a supervised but unlocked facility outside the razor wire. They’re generally in the later stages of treatment. Their programming focuses on reintegration. They get to participate in vocational and volunteer opportunities and supervised outings.

U.S. District Judge Donovan Frank declared the program unconstitutional in 2015, calling it a “punitive scheme.” He said it gave nobody “any realistic hope of ever getting out.” But the 8th Circuit Court of Appeals overruled him in January, and the Supreme Court last Monday let that decision stand.



The state Department of Human Services, which runs the MSOP, won’t say anything about how close the eight on provisional discharges might be to earning full discharges. Citing privacy laws, it won’t even name them, even though their names appear in court records.

The department also points out that it doesn’t decide who gets out. Under state law, it’s up to the courts alone to decide which sex offenders to send to the program — and which to give a measure of freedom.

Court records show the state is appealing a three-judge panel’s order to grant one man a full discharge, while one provisionally discharged man has a pending petition for full release that the state is also opposing.



Kirk Fugelseth, who admits to abusing 31 victims, mostly boys ages 3-14, was put on track for a provisional discharge in 2013. But he was never sent to a community facility, primarily because Human Services couldn’t find a place for him. The three-judge panel backed his full freedom in July, writing:

“Petitioner’s continued confinement no longer bears a reasonable relationship to his original commitment,” the judges wrote. “Petitioner does not require inpatient treatment and supervision for any ongoing treatment needs, nor is he a danger to the public. Petitioner’s continued confinement is unconstitutional, and as such, full discharge is granted.”

The Minnesota Court of Appeals holds oral arguments on the state’s appeal Nov. 1.

Clarence Opheim, who’s been on provisional discharge since 2012, longer than anyone else, has a hearing Dec. 1 before the three-judge panel that hears discharge cases. The reasons why the program’s internal review board opposes his full discharge are sealed. Opheim has admitted to molesting 29 boys. He’s been in the MSOP since 1994, the year it began.

Fugelseth’s attorney declined to comment, and Opheim declined an interview request made through an attorney for the more than 700 offenders in the class-action lawsuit that unsuccessfully challenged MSOP’s constitutionality, David Goodwin. He said those on provisional release don’t want to draw attention.

“The way they see it, they have one foot out the door and are trying not to rock the boat too much,” Goodwin said. “They think the system is rigged against them as it is, so if they give anybody a reason to come down on them it’s going to be worse.”



MSOP officials revoked the provisional discharge of one man this summer.

Oliver Dority, who raped two women in 1994, had been living at a community facility since early last year. Now he’s back behind the razor wire at St. Peter pending a hearing on his appeal Wednesday, said his attorney, Mary Huot, who called the decision “punitive.”

Huot declined to specify why the program reeled him back in, and public records don’t give an explanation. But she said he committed no crime, just a technical violation of the conditions of his release.

“He was a rock star in treatment,” she said. On the outside he had been working two jobs and was close to earning a college degree, she said. “He is, of course, very distraught over his current situation.”



State officials have pledged improvements, but there are bottlenecks. Twenty-one offenders are still waiting for beds to open up in Community Preparation Services.

Seven clients granted provisional discharges still haven’t moved from St. Peter into community settings, partly because Human Services doesn’t have places to put them. Three men were supposed to move into an adult foster home in Dayton last fall. The city council then voted to keep them out, shortly after local opposition also scuttled efforts to move offenders into a home in Kasota Township.

Following the Supreme Court decision, Gov. Mark Dayton pledged to continue pushing for reforms. He proposed $18.4 million in new funding in this year’s legislative session to improve facilities and staffing but didn’t get it. Human Services Commissioner Emily Piper said they plan to ask again for more money for less-restrictive housing and other changes.

But now that the courts have taken off the pressure, spending money to benefit sex offenders could be a hard sell to lawmakers.