By Don Davis
Many Minnesotans may be perfectly happy to see sex offenders tossed behind bars, with jailers throwing away the keys.
However, a federal judge says the system Minnesota uses is so close to the throw-away-the-key philosophy that it violates the U.S. Constitution. He threatens to take action if Minnesota leaders do not fix the system.
If that change does not come in the legislative session that ends May 20, the judge could order the state to make expensive changes and order state officials to release offenders.
A Senate committee Monday night unanimously approved legislators’ first step to meet the judge’s demands. The bill that was passed on to another committee requires the state to find “an adequate number of facilities” around the state to treat sex offenders who have completed their prison terms instead of the current system that send serious offenders to state hospitals in Moose Lake and St. Peter.
The bill by Sen. Kathy Sheran, DFL-Mankato, would establish a system that allows judges to commit a person to treatment, but keep him under strict supervision while he is in the community.
Commissioner Lucinda Jesson of the Minnesota Human Services Department called the state’s two hospitals where sex offenders are treated “prison-like” facilities. New sex offender treatment facilities would not look like prisons.
In the Sheran bill, anyone in the Minnesota Sex Offender Treatment Program under the strict release provision would be reviewed once a year and the Human Services Department could ask a judge to put the offender in a security facility at any time if they have violated conditions of their release.
Sheran said the key to her bill is that “it is a treatment program rather than one that continues to punish.”
Former Minnesota Chief Justice Eric Magnuson, chairman of a task force the federal judge ordered to draw up recommendations, said the Sheran bill “clearly addresses the issue.”
Magnuson said in an interview that the state needs to do something, “even if it isn’t a complete solution.”
“People don’t fully understand what a federal judge can do,” Magnuson said.
Minnesota law allows state judges to indefinitely commit serious sex offenders who complete their prison sentences to a treatment program in a locked state hospital. Only one sex offender has been released from the program.
At the end of last year, state hospitals in Moose Lake and St. Peter were treating 678 sex offenders.
The number of sex offenders committed to the treatment program grew greatly in the past decade after the high-profile Dru Sjodin case.
The University of North Dakota student was kidnapped from a Grand Forks, N.D., mall in 2003, and a sex offender released earlier in the year was convicted in her murder. Her body was recovered months later near Crookston, Minn.
“We are very aware of the importance of public safety, of the concern people have about this issue,” Magnuson said. “On the other hand, the Constitution has to be followed. There are better ways to ensure protection both of the constitutional rights of these committed persons and public safety.”
Sen. Tony Lourey, DFL-Kerrick, said Sheran’s bill, if it passes, should meet with the judge’s approval and keep him from taking action against the state.
“This would meet the recommendation of the task force,” said Lourey, who has been a chief proponent of finding an alternative to the current system.
More importantly, he added, if the bill passes, it should “show that Minnesota is serious” when the judge decides whether to take action.
Magnuson warned that U.S. Chief Magistrate Arthur J. Boylan could do like a California judge did: Release a large number of offenders.
Minnesota is one of 20 states to allow judges to commit sex offenders to treatment after serving their sentences. The law is based on the fear that sex offenders could reoffend if allowed back into society.
“The notion that you can lock someone up for something they might do in the future is difficult,” Magnuson said.
The former chief justice said the U.S. Supreme Court has ruled that state laws can keep people locked up to prevent future crimes, but “you have to have them in some type of program that offers treatment. You can’t just lock them away and throw away the key.”
Sex offenders in the program filed a federal lawsuit saying their rights have been hampered since only one person has left the program.
“No one has really successfully graduated from the program,” Magnuson said. “And that is a big constitutional issue.”
“The state has to create some less restrictive alternatives … but at the same time to do everything possible to protect the public,” he added.
The judge will begin to take action if lawmakers do not act, Magnuson said. If so, he warned, the action will be with “a broadsword; it is not a scalpel.”
He “may order the state of Minnesota to do things that would not be very effective,” Magnuson said.
Minnesotans need to realize that not everyone should be locked up forever, Magnuson said. “There are people who are locked up with no real hope of ever getting out who could have been treated and maybe could have been returned to their families and their communities.”