Lifetime Commitment

Two lawyers challenge the governor's new policy on sex offenders

"State officials look to release sex offenders." That was a front-page headline in the Star Tribune back in June. But the accompanying article described something slightly different. The story detailed the Department of Human Services' plans to begin allowing some men who have been committed after serving their prison sentences to begin gradually transitioning back into the community. Even though none of the 200 men enrolled in the Minnesota Sex Offender Program were actually being released, the story ignited a wave of sex-offender hysteria and political grandstanding.

Attorney General Mike Hatch accused the administration of freeing dangerous criminals in order to balance the budget. Gov. Tim Pawlenty responded by issuing an executive order barring state officials from releasing civilly committed sex offenders unless required by law or court order.

In theory, the men who are committed to state facilities in Moose Lake and St. Peter are supposed to work their way through a therapy program and eventually be released back into society. In reality, since the sex offender program was established in 1995, not a single person has been set free.

Earlier this month, a lawsuit was filed in Ramsey County District Court seeking to have the Governor's executive order vacated, arguing that it usurps the authority of the Department of Human Services and is in conflict with state law. Eric Janus, a professor at William Mitchell College of Law, and Warren Maas, coordinator of the Hennepin County Commitment Defense Project, are representing five sex offenders named as plaintiffs.

 

City Pages:What is the impact of Gov. Pawlenty's executive order?

Warren Maas: I don't know that we know for sure. There are two things that at least I'm concerned about. One is that it is stopping the treatment staff from progressing people through the program. And two, it has a discouraging effect on the people who are trying to seriously work the program.

CP:Under the present program nobody has gotten out anyway. So is the end result any different?

Eric Janus: What we know is that there were six or seven people on the verge of
being eligible for gradually increasing pass privileges. There's no way that anybody's going to get out of this program except in a gradual manner. Even those people who were kind of the crème de la crème, and who were the stars of the program, their progress has now been stopped.

WM:It reinforces the cynicism. The skeptics can point to this and say, "See, I told you so."

CP:Why hasn't anyone gotten out of this program?

EJ: Some people would say that it's been an overly rigid program that has only very narrow, hole-in-the-needle-that-needs-to-be-threaded [provisions] for people getting out, and that it takes a great deal of perseverance and a certain amount of skill to make it through all the hoops. Now, some people would say, "That's good; it's doing its job." Others would say it's a foolish misuse of resources because it's not a good test for risk. And then on another level, I think you can say almost no one has gotten out because the politics of it and the risk matrix is hugely
biased against anybody getting out.

CP:What exactly is the legal argument in this lawsuit?

EJ: Two arguments, very straightforward. Number one, the legislature said that the commissioner of Human Services and the medical director of this program have the discretion to decide, based on professional judgment, whether somebody should advance to the next stage of the program. By saying that no one should get out unless ordered by a court, or required by law, the Governor has changed that discretion, and in fact arguably has removed that discretion. The second argument is that the Governor had no business issuing an executive order on this subject in any event, that he doesn't have authority to say how the program runs.

CP:The courts have been extremely reluctant to strike down these programs. Is there any reason to be hopeful that this lawsuit will succeed?

WM: We're not intending with this suit to knock over the house of cards. What we want is ... [for] people who have seriously and sincerely worked the program to reach the next logical destination, which is the pass plan, and from there provisional discharge.

EJ: I think the big remaining issue now is whether they can go on forever holding people, never releasing them, or whether there's some time limit on how long they can hold people before it demonstrably turns into a punitive form of preventive detention rather than quote unquote treatment. It's a little like Peanuts. If Lucy pulls the ball away every time Charlie Brown's about to kick, sooner or later even the courts are going to decide that Lucy is not really playing the game the way it's supposed to be played.

 
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