Official says he will not move to shut down entirely

ST. PAUL — A federal judge who declared Minnesota’s sex offender treatment program unconstitutional intends to rule in October on how the state must fix it after signaling in court Wednesday that he wouldn’t move to shut it down entirely.

Judge Donovan Frank and attorneys in a 4-year-old class-action lawsuit debated how far the court can go in shaping regulations for an indefinite confinement program housing more than 700 offenders deemed a continuing risk to society. In June, Frank ruled the program deprived detainees of their civil rights and he set in motion the remedies phase.

Frank restated his belief that there are deep flaws in Minnesota’s civil commitment program, which has the highest per capita lockup of 20 similar programs around the country and is among the strictest when it comes to offender release. But he said during Wednesday’s two-hour hearing that closing the program and putting offenders back into the community immediately without proper transition services would be detrimental to them and the public.

“We can’t do as they have done in some other states to just open the door and let people walk out the door,” Frank said.

Dan Gustafson, the lead attorney for the offenders, urged Frank to require more-frequent risk evaluations and less-restrictive settings for offenders showing progress in controlling sexual impulses, including treatment outside of the razor wire ringing the Moose Lake and St. Peter facilities. He said Frank has wide latitude to impose changes — and possibly financially sanction the state — because government lawyers have refused to recommend alternatives to current program.

“By their refusal to participate they have given you an unfettered range of remedies,” Gustafson said. He suggested fining the state $1,000 per patient per day until it comes into compliance because “money going out the door” could help break a political deadlock over program changes.

State attorneys and political leaders insist the program is constitutional and intend to appeal, which could push a final decision out a year or more. Deputy Attorney General Nathan Brennaman argued that any remedies must be tailored to individual offenders if their civil liberties have been denied.

Rejecting suggestions those locked up have categorically been ensnared in a broken system, Brennaman said the onus was on the offenders to prove specific instances of wrongful confinement.

“The case has always operated at a level of generality that is not particularly helpful. Mr. Gustafson complains that all this delay is so unfair, his clients are languishing at MSOP because of the state’s conduct,” Brennaman said. “Well, who?”

Brennaman said the state lacks enough qualified evaluators to conduct yearly risk assessments, which can take up to 55 hours each. And attempts to build alternative facilities that are transitional in nature have fallen flat in the Legislature.

Offenders in the Minnesota program are sent there through a civil court process, often after they have completed a criminal sentence in prison. No one has ever been fully discharged from the program in its history, but a few have been provisionally released to community-based settings.

Hennepin County Attorney Mike Freeman, whose office broke from state attorneys in welcoming court-imposed changes, told Frank the program “has grown too large and keeps too many people.”

Sex offender programs in Missouri and Washington have also come under federal court scrutiny for failing to adequately move people toward release. That differs from programs in places such as Wisconsin and New York, in which offenders routinely return to society after completing treatment.

Outside the hearing, Minnesota Human Services Commissioner Lucinda Jesson said she favors changes to the program but that those must come from lawmakers.