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August 20, 2012

Federal magistrate orders(!?) Minnesota to convene Task Force to reform state's sex offender civil commitment

I just came across this interesting local story coming out of Minnesota last week, headlined "Minnesota must change sex offender program, judge orders." The story's report on a recent judicial order concerning Minnesota's civil commitment program strikes me as notable both as a matter of substance and procedure. Here are the details:

A federal judge has ordered Minnesota to reform its system for civilly committing and confining paroled sex offenders to indefinite treatment, a controversial practice that has drawn international criticism because almost no one has gotten out.

Chief U.S. Magistrate Judge Arthur Boylan on Wednesday ordered state Human Services Commissioner Lucinda Jesson to convene a task force of experts to recommend options less restrictive than the state's prison-like treatment centers and to suggest changes in how offenders are selected for civil commitment, as well as how they might earn release from the program.  The order came during pretrial discussions in a class-action lawsuit brought by patients who argued that their indefinite detention after completing their prison sentences is unconstitutional.

Critics of the Minnesota Sex Offender Program (MSOP) hailed Boylan's order as an unprecedented and significant step toward changing a system that has been a magnet for controversy since its creation in 1994 with the construction in Moose Lake of a sprawling campus surrounded by razor wire.

The program was created to treat small numbers of the state's worst sex criminals who had completed their prison sentences but were deemed too dangerous to release. But the 2003 killing of college student Dru Sjodin by a rapist newly released from prison prompted a surge of commitments of all types of sex criminals, from rapists to nonviolent molesters. The state went from committing an average of 15 per year before 2003 to 50 per year after that pivotal year.

The program's population has soared to more than 600 -- the most sex-offender civil commitments per capita in the country. Only two have won provisional discharge. One of those, Ray Hubbard, was pulled back into a treatment lockup because a psychiatrist thought he might reoffend. He died shortly thereafter....

Former state Sen. Don Betzold, chief author of the 1994 Sexually Dangerous Persons Act that created the current civil commitment system and MSOP, said the courts have repeatedly upheld the law as constitutional because judges believed the confinement was for treatment and that the public has been reassured that a subset of dangerous sex offenders are not free to strike again. However, even Betzold, a lawyer, said the lack of releases is a problem because it invites the conclusion that the program's only purpose is confinement....

The lead attorney for the patients, Dan Gustafson, called Boylan's order "a significant step" toward making the MSOP more effective and fair. "If you're going to commit these folks, you have to give them legitimate treatment and the legitimate opportunity to get out," said Gustafson, adding that unless the state reforms the system, it risks that the courts will declare the program unconstitutional and order releases, or mandate program improvements more expensive than the state can afford....

Boylan ordered that the state try to pack the task force with experts in the civil commitment system and the MSOP, including current or former legislators, prosecutors, judges, police, attorneys for patients, and state and local officials who deal with offenders....

[S]tate Rep. Tony Cornish, R-Good Thunder, who has studied the MSOP and civil commitment system as chair of the House committee on Public Safety and Crime Prevention Policy and Finance, ... said that when he and other legislators examined issues with the program this year, they found "there was no appetite in the Legislature for letting anyone out. They'd rather spend millions of dollars keeping people locked up than take the chance of something bad happening."

Now that a federal judge has ordered the state to look at other alternatives, policymakers may have to make decisions they find difficult to stomach, Cornish said, although the court mandate also may give them more of the political cover they need to make changes. "The die has been cast," Cornish said. "Now we have to find a blend that will satisfy the court but still protect the public."

Based on this press account, it is hard to tell if the order in this case from Chief U.S. Magistrate Judge Arthur Boylan is part of a consent agreement or some other negotiated settlement of the on-going lawsuit.  Whatever the formalities, I think it is unusual (and perhaps even inappropriate) for a federal magistrate judge to "order" a state official "convene a task force of experts to recommend" changes to a program which may be constitutional and to further demand that this task force be packed "with experts in the civil commitment system and the MSOP, including current or former legislators, prosecutors, judges, police, attorneys for patients, and state and local officials who deal with offenders." 

I am all for expert task forces to examine and address seemingly problematic areas of a state's criminal justice system.  (Indeed, as noted here, I am a member of just such a task force in Ohio.)  That said, I have never heard of a federal judge ordering the creation and staffing of such a task force as part of the adjudication of a constitutional challenge to a state criminal justice practice.  Perhaps this kind of order is not unusual or inappropriate for this kind of litigation, but it sure seems noteworthy all the same.

August 20, 2012 at 11:37 PM | Permalink


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hmm no shit!

This is from what i understand the longest running state run sex offender treatment program 20 years or so and to date TWO individuals have been released and NOT becasue they completed the program but because they went to court and get a court order.

both were shortly sandbaged and returned. so to day legally NOBODY has ever got out.

So not much of a treatment program. Just another lieing fucktard way of saying PRISON! which when shoved into it AFTER completion of a legal COURT ORDERED SENTENCE is ILLEGAL RESTRAINT or KIDNAPPING.

Which of course means each and every individual in it has every LEGAL and MORAL right to leave no matter WHO THEY HAVE TO HURT OR KILL!

Posted by: rodsmith | Aug 21, 2012 1:08:27 AM

This civil rights revolution will give some benefits to the peoples especially to the minorities.

Posted by: Solicitor Sutton | Aug 21, 2012 6:43:18 AM

the judge may have to overcome some double jeopardy issues.

Posted by: Income Tax | Aug 21, 2012 8:48:23 AM

I strongly urge the commissions in Minnesota and Prof. Berman on his committee in Ohio to include tort liability for all decision makers for this population, including and especially any judges, and any appellate judges. It can use professional standards of due care, rather than the strict liability standards this population deserves. In their ordinary use, these predators are explosively dangerous, and the decision makers know that full well, with the foreseeability of planetary orbits (as in the sun will rise in the East).

Such liability would deter carelessness; would be fair to future victims; and would end the justification for violence against the decision makers in formal logic, morals, and policy.

Posted by: Supremacy Claus | Aug 21, 2012 2:56:42 PM

\This civil rights revolution will give some benefits to the peoples especially to the minorities./ {{Solicitor Sutton}}


1. Are the minorities especially committing severe sex crimes, or just being targeted for civil commitment?

2. "paroled sex offenders" You say you want a revolution? Put them back in prison at Oak Park Heights.

Posted by: Adamakis | Aug 21, 2012 3:32:05 PM


I'm pretty sure that message was spam, much like the next one referencing double jeopardy.

Posted by: Soronel Haetir | Aug 21, 2012 6:57:20 PM

yep those are kind of obvious. when i see ones like those i jsut hold the mouse over the name and see what comes up.

Posted by: rodsmith | Aug 22, 2012 1:47:32 AM

Hi Im a student.

Posted by: dill | Aug 22, 2012 10:51:16 PM

NO dill your a pain in the neck spammer who should be legally hunted down and beat to death with your own computer!

Posted by: rodsmith | Aug 23, 2012 4:36:17 PM

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