Attorneys argue that state's sex offender program is unconstitutional

Attorneys representing nearly 700 sex offenders asked a federal judge today to declare the Minnesota Sex Offender Program unconstitutional.

The hearing before U.S. District Judge Donovan Frank marked the latest step in a class-action lawsuit challenging the program, in which offenders deemed too dangerous to release are detained under civil commitment for treatment, even after serving prison time.

In their lawsuit, the Minnesota Sex Offender program's "clients" — as the state calls them — say they have little chance of release, and that their indefinite detention violates their 14th Amendment right to due process as well as other constitutional guarantees.

Their attorney, Dan Gustafson, said the fact that only one person has been provisionally discharged in the program's 20-year history "shocks the conscience."

After the hearing, Gustafson said the Minnesota Sex Offender Program is under intense political pressure to keep people locked up.

"The decisions that are being made by MSOP are based on security of the public first and treatment second," Gustafson said. "And so what we need to have is a system where the treatment takes at least an equal role with security, if not a primary role, so these people can be treated and released."

Gustafson, who concedes that the program helps protect the public, said he is not asking the court to shut it down and release all of the detainees immediately.

The plaintiffs want Frank to appoint a special master to oversee the program. They're also requesting a review of all the clients' cases and want the judge to order the state to provide less restrictive treatment options for offenders who qualify.

Deputy Minnesota Attorney General Nathan Brennaman told the judge the detainees do not have a fundamental right to treatment, or even less restrictive options. Brennaman also said the plaintiffs failed to show harm to any individual offender.

Frank said he would decide on the motions within 60 days, just before the Legislature reconvenes next year.

In the past, courts have not been generous to individuals who challenged their confinement, said William Mitchell College of Law Dean Eric Janus, a long-time critic of the program. But he notes that the latest lawsuit challenges the system as a whole.

"We're dealing with a different situation here, where you have a 20-year period, 700 people, and a very clearly established action by the state," said Janus, a member of a court-appointed task force that recently recommended less restrictive treatment options.

The recommendations include giving judges the option of sending sex offenders who have completed their sentences to less restrictive treatment programs instead of to prison-like treatment facilities where most are detained indefinitely. The task force also recommends establishing a screening unit independent of the state departments of Human Services and Corrections to evaluate sex offenders who might meet the criteria for commitment every two years.

State Rep. Tina Liebling, DFL-Rochester, said she does not want Frank to impose a solution.

"What I'd really like to see the judge do, is give the legislature a strong signal about his intentions and give us some time to respond," said Liebling, who is working on legislation to adopt the task force's recommendations. "Because it's really our job to deal with this program. We were not elected to punt on decisions like this."

Nearly all of the people in the Minnesota Sex Offender Program are held at its facilities in Moose Lake and St. Peter. Most have spent time in prison.

But others haven't. Among them is 26-year-old Craig Bolte, one of the sex offenders challenging the state's civil commitment law.

As a toddler, Bolte suffered sexual abuse at the hands of a relative. At age 15, he sexually abused his younger sister, according to court documents. He also propositioned an 11-year-old girl and threatened to kill her father. Bolte was sent to several juvenile treatment programs. When he was 19, a judge deemed Bolte a sexually dangerous person and sent him away for further treatment in the Minnesota Sex Offender Program.

"When I got committed right out of juvie, I essentially thought my life was over," Bolte said. "I thought I was going to die here, I thought there was no chance."

Bolte said he no longer has the desire to abuse anyone. But he said that's because of his own personal growth, not because of any treatment he received at Moose Lake.

"For me, the program really hasn't done me much good," he said. "I think in order to have real treatment, you need to have a situation that fosters a sense of hope, a sense there is an end to this and you're going to be able to go live a normal productive life. And I think that the environment we're in does not contribute to that kind of atmosphere, that kind of mentality, that there is hope."