Report: Sex offender program is broken

A study released last month on Minnesota's "civil commitment" policies regarding people convicted of sex offenses says the state has failed in proving the worth of programs run in Moose Lake and St. Peter, under the umbrella of Minnesota Sex Offender Program, or MSOP.

"Minnesota's uniquely aggressive civil commitment program threatens basic constitutional rights while exacerbating the very problem it is intended to solve," said Eric Janus, director of Sex Offense Litigation and Policy Resource Center at Mitchell Hamline School of Law, the creators of the study.

The report says the state "needlessly tramples civil and human rights, fails to meaningfully reduce sexual violence, and deprives more-effective sexual violence prevention strategies of critical resources."

Here are some key findings:

• Costing more than $100 million per year, civil commitment is by far the state's most expensive sexual violence prevention program - despite researchers finding that civil commitment has "no discernible impact" on reducing sex crimes.

• The state's support of primary prevention, to prevent sexual harm before it occurs, is less than 2 percent of civil commitment funding.

• Minnesota is a national outlier: Most states do not use civil commitment at all, yet Minnesota commits the most people per capita among those that do.

• Civil commitment in Minnesota is effectively a life sentence without the due process protections. As of September 2023, just 21 of the 946 people committed to MSOP over its 30-year history have ever been fully discharged, while at least 94 have died during their confinement.

A person is nearly five times more likely to die in the program than to be discharged from it.

• Minnesota's civil commitment policy has been rebuked by federal and state courts, academic studies, a state government task force, and the Office of the Legislative Auditor, yet policy change has not followed, and the program's failures persist.

A number of high-profile legal scholars chimed in on the report, including former Minnesota Supreme Court Chief Justice Eric Magnuson.

"It has been over a decade since the Sex Offender Civil Commitment Advisory Task Force that I chaired found unanimously failures in Minnesota's civil commitment scheme, including that it was dangerously overbroad, capturing too many people for too long in ways inconsistent with both public safety and civil rights," Magnuson wrote. "This report shows in painstaking detail how those and other problems have only worsened, and makes the urgent case for sunsetting Minnesota's failed experiment with sex offense civil commitment."

The Sex Offense Litigation and Policy Resource Center, according to its own description, "collects and disseminates information about cases on issues of sexual violence policy, and facilitates communication, sharing, and the development of strategies among the lawyers, advocates and academics who seek a more sensible and effective public policy on sexual violence prevention."

Treatment focus

The Minnesota Department of Human Servicesrun the MSOP facilities and said it is focussed on the treatment of clients at MSOP facilities. In a response to the report, the DHS said it "raises concerns primarily about state's civil commitment laws for sex offenders, the number of individuals who have been civilly committed under the laws, and the length of time individuals spend at MSOP before they are discharged. Very little in the report focuses on treatment at MSOP."

As of March 28, MSOP had 734 clients in its two treatment facilities, the most per capita of any similar program in the country. The Moose Lake facility houses 430 people.

The DHS spends $479 a day on each client, or $174,835 per client each year.

In Minnesota, civil commitment is typically applied to those who have been convicted of a sex crime and already completed their criminal sentence. Commitment proceedings often occur around the time that someone is set to be released from prison. Once someone is committed by a court, they are housed in secure prison-like facilities run by MSOP and administered by DHS "to provide treatment services to individuals who are at risk of reoffending."

The recent study said the MSOP model is not reducing sexual violence.

"Minnesota's policymakers invest over $100 million per year on civil commitment while leaving other critical sexual violence services and interventions, including primary prevention, wanting," the study said. "Prevention strategies are designed to prevent sexual violence before it occurs. Such interventions are essential to any comprehensive sexual violence reduction program because they can be widely implemented at the community level, where even a small reduction in perpetration behavior may have a broad impact on sexual violence reduction. Yet primary prevention efforts have not received financial support even remotely approximating that given to MSOP."

The DHS stands by its role.

"Only a court has the authority to commit someone to MSOP or to discharge them," the DHS wrote in a statement to the Pine Knot News. "Demonstrated participation and progress in treatment is the clear path to discharge. It is the most persuasive argument that clients can make when petitioning the court for a reduction in custody. To date, the court has granted a number of reductions in custody, including transfers to Community Preparation Services, provisional discharges and full discharges."

Hopelessness

But clients at the facilities find little recourse on ever getting out. The study quoted one person housed by MSOP: "The level of hopelessness ... around here has reached ... almost crippling levels to the point where people don't even try, people don't attempt anything, and people don't have any motivation. People are willing to do nothing, to try nothing, to get out of here because nothing we do works."

Assaults in Moose Lake last year highlighted those emotions. A client who spoke to the Pine Knot News then said one way to get out is to strike back with violence, usually at staff at the facility. It's a way to be sentenced and returned to a state prison, Daniel Wilson said.

The hopelessness is coupled with less trust in staff, with fewer people at facilities taking care of the clients, Wilson told the Pine Knot.

Wilson helped organize hunger strikes at the Moose Lake facility in 2021, to bring rise to many of the issues brought up in the report.

Turnover is also a problem, as highlighted in the report.

"Recent conversations with detainees reveal that progression often feels unpredictable and can depend on external conditions like staffing turnover. Due to poor staff retention at MSOP, detainees often find that their treatment progress is interrupted when they are placed with a new provider. As one detainee, Joshua Brooks, stated: 'It doesn't matter how much treatment you do, it starts over. There's therapists changing out. I, myself, have had 22 different therapists in 11 years.'"

Employee concerns

In February, workers at the MSOP and correctional facility in Moose Lake talked to legislators before the current session about staffing, security and workplace environments.

David Clanaugh, volunteer services coordinator at MSOP, and the Region 17 director and Local 1703 member of the Minnesota Association of Public Employees, said there has been "alarming turnover and recruitment rates" at the two facilities.

A report on the meeting from MAPE offered some startling examples for employees. Peter Braith, a recreation therapist at MSOP, said his department now has four employees, down from nine a few years ago, "yet therapists are expected to keep programming at levels when they had more staff."

Ryan Patrick, a substance abuse therapist at Moose Lake, told legislators that the library, gymnasium and yard at the prison are often closed due to lack of security staffing.

"I work directly with many colleagues and about 150 clients through a wide range of modalities in a therapeutic environment," Clanaugh said. "I stay at MSOP because I truly enjoy working with the people, both clients and colleagues. I also stay here because of my various union roles and a firm belief that our union can make things better."

MAPE and other unions have been working together this legislative session on proposals to "increase staff safety and provide members with a stronger voice in the workplace," MAPE reported.

Little movement

Tough scrutiny of the MSOP goes back more than a decade. Attorney Dan Gustafson spent more than six years suing Minnesota's sex offender program for locking up hundreds of offenders with no chance for them to ever be released. In 2015, federal judge Donovan Frank declared the program to be unconstitutional, ruling that clients were being permanently housed with no recourse to get out. He ordered the state to immediately make changes.

The state appealed the ruling and a three-judge panel on the 8th Circuit Court of Appeals struck down Frank's decision.

Nevertheless, MSOP had its first release of a client in 2016. Others have followed.

But the political will to change how people are placed into and then confined at MSOP has waned.

The DHS said MSOP is a recognized leader in sex-offense-specific treatment.

"Public safety is at the heart of everything we do. The program is dedicated to providing the therapeutic guidance and tools clients need to break ingrained patterns of behavior, make meaningful change and reduce their risk of re-offense. Treatment is tailored to each client's individual needs and risk factors. Progress depends on clients' internal motivation, their engagement in treatment, and their demonstrated willingness to apply what they learn. The goal is safe reintegration into the community."

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A call for change

The Sex Offense Litigation and Policy Resource Center at Mitchell Hamline School of Law, in its study of Minnesota’s civil commitment policy for sex offenders, has several recommendations for change, outlined in their words below:

Moratorium & Reinvestment

The Legislature should halt all new admissions to the Minnesota Sex Offender Program and apply a reinvestment formula such that savings from population reductions are reinvested into a comprehensive, evidence-based system of primary, secondary, and tertiary (level three) forms of sexual violence prevention.

Sunset

The Legislature should develop an orderly process, designed with input from the governor’s office, state agencies, local communities, victim advocates and violence prevention agencies, detainee representatives, and legal and treatment experts, to safely re-integrate existing detainees into the community within a reasonable, but short, timeframe.

• This process should include discharge planning for all detainees; the identification and creation of appropriate community-based treatment resources; identification and creation of appropriate residential resources, including halfway houses, transitional housing, apartments, etc .; and employment, training, and educational opportunities. Sunsetting requires determination of appropriate support for those released to enable successful re-integration and community safety.

• This process will be complicated, and we recognize that a small percentage of those who have been detained at MSOP for decades may need substantial and sophisticated support to safely re-enter a community setting. We are clear that involuntary preventive detention is not the solution, and cannot be a long-term component of any sunset process.

Collaborative problem-solving process

As this report confirms, change has been impeded repeatedly by the toxic politics and fear-driven rhetoric surrounding these issues. For this reason, we suggest that a collaborative problem-solving process be considered to bring together key stakeholders and articulate what we believe to be the silent consensus that civil commitment is a broken system whose massive investment should be reallocated to a comprehensive, evidence-based campaign of prevention.

Harm reduction

Minnesota leadership can reduce ongoing harm inside MSOP and bring the functioning of MSOP more closely in compliance with constitutional, statutory, and contemporary treatment standards by:

• Routinely informing all detainees of their right to petition for transfer to a less restrictive environment or discharge and providing information about the process for filing a petition.

• Notifying detainees when their petition for transfer and/ or discharge has been received and providing as much information as possible about the timing of all hearings.

• Providing annual review of each detainee’s risk level using the most current and best available empirical actuarial risk assessment instruments and need for continued commitment based on current risk. Developing and implementing a policy of supporting the release of low-risk individuals (e.g. elderly, disabled, juvenile only, and those with low risk assessment scores, etc.) without requiring treatment progression.

• Amending MSOP’s policies restricting clients’ rights to peaceful demonstration, speech, and advocacy regarding legislative and policy changes to MSOP.

• Reviewing the discharge and step-down petition process and considering how to streamline the process and expedite the consideration of detainee petitions.

• Allocating adequate funds to expand Community Preparation Services to allow for timely transfer of those detainees approved for such transfer.

• Amending the state’s statute to require annual review

of each detainee’s risk level and need for continued

commitment.

• Amending the state’s discharge criteria to require discharge when a detainee no longer meets initial commitment criteria.