Judge Speeds Challenge To Sex Offender Program

MINNEAPOLIS (AP/WCCO) — A federal judge on Monday denied motions for the immediate release of a man from the state's sex offender program and the transfer of the only woman in it to a less restrictive facility, but said he will expedite a class-action challenge to the program's constitutionality and set it for trial later this year.

U.S. District Judge Donovan Frank told attorneys for both sides to come with trial dates in mind when they hold a previously scheduled pretrial conference on Thursday of next week.

The overall lawsuit by patients committed to the program alleges it's unconstitutional because it keeps offenders locked up indefinitely with no realistic hope for release. The state has civilly committed nearly 700 people who have finished their prison terms to high-security facilities in Moose Lake and St. Peter. Only one patient has been successfully given a conditional release from the program since 1994.

In his order Monday, Frank declined to order the immediate release of a man identified in court documents as E.T. who is in the program for acts he committed between age 10 and 14. He's now 24. The judge noted that experts testified at a hearing last month that E.T. should never have been placed in the program, doesn't need sex offender treatment and poses little risk to public safety. He called it a "troubling state of affairs."

But the judge also pointed out that the program's executive director, Nancy Johnson, supports transferring E.T. from the high-security program to an unlocked facility that's designed to prepare people to move into the community. A decision on that is pending from a special state judicial panel. She has further said that if E.T.'s first month of transition goes well, she'd support his provisional discharge from the program this year.

Frank wrote that Johnson's plan may be the best way to resolve E.T.'s case soon. He also said he wouldn't hesitate to revisit E.T.'s case if the state fails to expedite it.

As for plaintiff Rhonda Bailey, the judge noted that state officials recently said they were willing to explore transferring her out of the otherwise all-male program into another facility that would meet her treatment and safety needs. He expressed frustration that officials are only now considering that option, given that she's been in the program for over 20 years. He said he'd revisit her case, too, if the two sides fail to reach a timely agreement.

If not for the lawsuit, Frank wrote, E.T. "would likely have languished for years in the prison-like environment of MSOP-Moose Lake without any realistic hope of gaining his freedom." And he said his constitutional concerns about the program are heightened by what court-appointed experts reported on "the grossly inadequate — even shocking — treatment of Bailey."

The lead plaintiff for the plaintiffs, Daniel Gustafson, said he was pleased the judge decided to accelerate the case but disappointed the two individual clients will have to wait. Gustafson said he would propose beginning the trial in late September or early October.

Dan Gustafson is representing several offenders.
"The evidence will show a more systemic problem at MSOP, that the program is being administered unconstitutionally particularly when it comes to discharge." Gustafson said.

He said lawyers for the state will try to defend the program.

"For some people it works just fine, for others, it can be handled by a case by case basis and not in a class action lawsuit." he said.

The Department of Human Services, which oversees the program, found some bright spots.

"We are pleased that the court did not immediately discharge these two clients, which would have represented an unwarranted risk to public safety," Human Services Commissioner Lucinda Jesson said in a statement. "We continue to prepare for the trial where we will defend the constitutionality of this program."

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