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August 9, 2017

Should and will SCOTUS take up constitutional challenge to Minnesota's sex offender confinement program?

The question in the title of this post is prompted by this effective Minnesota Lawyer article headlined "SCOTUS to mull accepting sex offender lawsuit."  The article reviews a cert petition that has garnered a lot of amici interest, which always increases the odds of SCOTUS interest. Here are excerpts from the start and end of the piece:

A case began in December 2011 as a pro se proceeding by patients in the Minnesota Sex Offender Program disputing the conditions including room searches, restrictive telephone and mail policies and bad food, among other things — that’s how the defendant state of Minnesota characterized it, anyway.  When the petitioners got an attorney, it got re-characterized as a matter of substantive due process.

It’s now pending at the United States Supreme Court, where the justices will consider the patients’ petition for certiorari.  The briefs are all in now — one from the state, two from petitioners and four from amicus curiae supporting the petitioners.

The constitutional issue presented to the Supreme Court is the standard of review that should apply to substantive due process claims brought by the patients. Strict scrutiny, the highest standard, as employed by Judge Donovan Frank?  Or simply a reasonable relation standard, as used by the 8th U.S. Circuit Court of Appeals? And must one’s conscience be shocked by the actions of the respondents, and if so, at what stage of the review?

As the petitioners’ attorney, Dan Gustafson, sees it, the nub of the problem is that once a person is committed, he or she is labeled dangerous and loses the fundamental right to liberty effectively forever under the state system. The state has failed to enact a procedure to make sure that people are able to be released, Gustafson said. The state does have a statutory reduction in custody scheme in place, but it shifts the burden of proof to the patient and it has never resulted in a release until this lawsuit was filed. “We’ve demonstrated that it hasn’t worked for the last 25 years,” Gustafson said....

Four amicus curiae briefs from a spectrum of philosophical points of view have been submitted by friends of the court in Karsjens, et al. v. Emily Johnson Piper, et al. But they all want the Supreme Court to reverse the 8th Circuit, which didn’t have a problem with the program, which had been found unconstitutional by Judge Donovan Frank.

A group of 26 professors of law or related subjects has submitted a brief written by Mitchell Hamline Professor Eric Janus and Minneapolis attorney Richard D. Snyder. The fatal flaw in the MSOP program is that no one gets out, Janus said. “The core of the case is that the state set up what it said was going to be a civil commitment program. And the core definition of that is people get out, and that’s exactly what is missing in the Minnesota program.  It’s not just missing here or there, it’s systemically missing,” Janus wrote.

The Cato Institute, known as a libertarian think tank and an advocate for limited government, is another friend of the court.  Its brief argues, “Sex-offender laws have bored a hole in the nation’s constitutional fabric.  As state and federal governments expand that hole — threatening to swallow other rights and other’s rights — this Court should intervene.”

Also weighing in are criminology scholars and the Fair Punishment Project of Harvard Law School, as well as the Association for the Treatment of Sexual Abusers. The Fair Punishment Project writes that the commitment statute is a punitive scheme that has responded excessively to “moral panic.”  The Association for the Treatment of Sexual Abusers promotes sex offender research and treatment.  It argues that granting review is necessary to take account of important advances in the empirical study of rates of recidivism among sexual offenders; effective assessment treatment, and management of sexual offenders; and factors that influence the effectiveness of treatment interventions.

A few prior related posts:

August 9, 2017 at 06:10 PM | Permalink

Comments

Of course they should and if they have real guts they would go back to the 2003 doe v Smith decision that created the whole illegal sxheme. Sorry but less than 6 months after that decision the first of thousands of new laws plainly illegal based on that decision was passed. Time to bite the bullet and toss it all.

Posted by: rodsmith3510 | Aug 10, 2017 3:13:08 AM

Of course they should and if they have real guts they would go back to the 2003 doe v Smith decision that created the whole illegal sxheme. Sorry but less than 6 months after that decision the first of thousands of new laws plainly illegal based on that decision was passed. Time to bite the bullet and toss it all.

Posted by: rodsmith3510 | Aug 10, 2017 3:13:09 AM

Of course they should and if they have real guts they would go back to the 2003 doe v Smith decision that created the whole illegal sxheme. Sorry but less than 6 months after that decision the first of thousands of new laws plainly illegal based on that decision was passed. Time to bite the bullet and toss it all.

Posted by: rodsmith3510 | Aug 10, 2017 3:13:09 AM

Man I hate lag. Sorry Doug

Posted by: rodsmith3510 | Aug 10, 2017 3:14:09 AM

Substantive due process was just a made up doctrine from the Dred Scott decision, to justify the re-enslavement of a free person. It does not exist in the constitution, nor anywhere else in any statute or regulation. It is a vehicle for the feelings and for the political attitudes of tyrannical appellate court judges.

I am curious. Did anyone attending law school ever hear a single minute of lecture or a single page of reading assignment reviewing Dred Scott? I think law school covers it less than a Japanese high school history text covering the Pearl Harbor attack. It cancelled the Missouri Compromise that prevented war for 30 years, set off the Civil War that killed 850,000 people, and violated a ratified international treaty, by spreading the legality of slavery to all the states.

It remains important today by the super toxic, lawyer spread infection of substantive due process. Lawyers should read the rationale for it.

Posted by: David Behar | Aug 10, 2017 8:22:57 AM

Committment to a Psych Hospital is "until treated and assessed as eligible for release".
Why should it be any different for civil committment of SO's? Treat them, assess them and release when ready.
Lock up for life is just crazy.

Posted by: kat | Aug 10, 2017 9:04:51 AM

I would worry -- if the patients are right -- about taking such a case with this Court -- they haven't exactly been overly friendly in sex offender cases.

Posted by: Joe | Aug 10, 2017 9:50:45 AM

Why are the detainees at Moose Lake not fighting pitched battles with their jailers like prisoners at Alabama's Atmore Prison last fall? What amazes me is that during the almost 25 years that MN has had a civil commitment program is that the prisoners haven't risen up. What do they have to lose? They have no incentives to behave themselves. They might as well raise hell.

Posted by: william r. delzell | Aug 10, 2017 5:12:32 PM

I am with william. Sorry but I would consider it an illegal detention and consider it my patriotic duty to escape no matter who on the staff I had to hurt or even kill to do so.

Posted by: rodsmith3510 | Aug 10, 2017 7:56:11 PM

Any psychiatrist releasing anyone will be afraid of being sued by the future victims. There will be no releases by doctors. A judge will have to release any patient, and let the future victims sue the judge. Because of absolute immunity, violence against any judge releasing these patients has full justification in formal logic.

Posted by: David Behar | Aug 11, 2017 12:14:04 AM

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