March 1, 2012

Lawsuits underscore MSOP’s legal jeopardy

3-1-2012 Minnesota:

Judges are starting to take seriously constitutional complaints about the Minnesota Sex Offender Program

In June Joseph Thompson, a civilly committed sex offender, filed a 57-page complaint on his own behalf in U.S. District Court alleging that the conditions of his confinement are unconstitutional. Thompson cited strip searches, confiscation of personal property and inadequate medical care as evidence that his confinement at a facility in Moose Lake is illegal. Such pro se court filings — often crude and poorly argued — are routinely dismissed as lacking merit.

But in January, U.S. Magistrate Judge Jeffery Keyes ruled that Thompson’s complaint had sufficient merit to entitle him to appointed legal representation. Specifically, the judge determined that a dozen of Thompson’s claims — including that he was wrongly denied adequate treatment and subjected to cruel and unusual punishment — warranted additional legal scrutiny. Keyes appointed the firm of Gustafson Gluek to represent him in subsequent proceedings.

“Although Plaintiff has the threshold ability to articulate his claims and to communicate effectively with the Court,” Keyes wrote in his opinion, “this Court believes that the complexity of the constitutional issues and Plaintiff’s lack of legal knowledge will present him with such disadvantages that appointment of counsel would substantially benefit the Court and Plaintiff.”

Dayton cited looming constitutional challenge

Last month Gov. Mark Dayton cited constitutional concerns in a letter to House leaders outlining why his administration is not opposing the provisional release of Clarence Opheim from the Minnesota Sex Offender Program (MSOP) despite a criminal history that includes molesting 29 boys. Opheim is likely to become just the second MSOP enrollee ever granted a provisional release from the program. The first individual violated the terms of his release, was returned to the program and eventually died while civilly committed.

“In the 18 years since the law was passed, not a single patient has yet been successfully released from such civil commitment,” Dayton wrote in the letter to House Speaker Kurt Zellers and Majority Leader Matt Dean, defending his administration’s decision. “This situation is now being used in a court proceeding, which claims that these people are being confined in legal institutions for life without the legal authority to do so. Again, were this challenge to succeed, it would have very serious ramifications for public safety.”

While Dayton is undoubtedly seeking political cover on a volatile issue, the Thompson lawsuit and others serve to underscore the constitutional perils facing the MSOP if it continues to operate without ever releasing individuals. A judge could determine that the program violates the rights of enrollees and order that all 600-plus individuals be released.

More likely, perhaps, is a scenario similar to what played out in Washington State. In 1994 a federal judge determined that the state’s civil commitment program for sex offenders was operating in violation of the Constitution. That resulted in a 13-year injunction during which the state’s civil commitment program was required to make annual reports to the courts on the adequacy of its mental health treatment programs. At one point the court imposed a contempt fine of $50 per day per patient for infractions but stayed the financial penalties in recognition of the program’s progress.

“It’s a real risk,” said Eric Janus, dean of the William Mitchell College of Law and an expert on civil commitment proceedings. “What the odds are is a little hard to say. In my judgment every year that goes by with no one being released, or only a few, increases the risk because it provides stronger and stronger evidence that the non-punitive purpose of this program is actually a sham.”

Teresa Nelson, an attorney with the Minnesota chapter of the American Civil Liberties Union, points out that Minnesota’s civil commitment statute was initially given clearance by the courts based on the promise that sex offenders would be given a legitimate chance at rehabilitation and release. “If that treatment and that whole process is a sham, at some point a court is going to say, wait a minute, we don’t have to just look at what the intent was, we can look at what you’re actually doing,“ Nelson said.

OLA report noted grounds for challenge

Adding to the legal jeopardy is a report released last year by the Office of the Legislative Auditor that found widespread problems with the MSOP. Criticisms of the program included inadequate access to treatment, disparate treatment of potential enrollees across the state and lack of lower-cost alternatives to civil commitment. “Without releases, Minnesota is susceptible to lawsuits challenging the adequacy of the treatment program,” the report concluded. In fact, Keyes cited the legislative auditor’s report extensively as evidence of problems with the MSOP in his findings in the Thompson case.

“I just think that that provides such weight and credibility that even these pretty inartful pro se complaints begin to take on substance,” Janus said. “If there is a good lawyer with some resources who has an opportunity to do discovery, there’s a really strong case that can be put together that’s very damning.”

The lawsuit that will bear watching in the coming months, however, is not the one filed by Thompson. The Gustafson Gluek firm was also appointed to work on another pro se filing with 14 named plaintiffs, including Keven Scott Karsjens, who are confined to the Moose Lake facility. That case is expected to move forward as a class action lawsuit and deal with claims similar to those raised by Thompson. “That’s going to be sort of the vehicle for all of the claims,” said David Goodwin, an attorney with Gustafson Gluek who is working on the case. “Once it becomes a class, we’re going to aim to represent everybody at Moose Lake.”

Multiple constitutional claims

The Karsjens complaint details a litany of purported constitutional issues with the MSOP, including punitive strip searches, strict limits on personal property, living conditions that mirror prison conditions and inadequate treatment. “The real mission of the MSOP now is institutionalization, preventative detention and punishment,” the complaint reads. “There is no rehabilitative purpose.” The lawsuit is seeking an injunction prohibiting the state from continuing to engage in unconstitutional practices. It also asks for damages in excess of $750,000. (An amended complaint is slated to be filed this week, but it’s not expected to alter the general character of the claims.)
That lawsuit is not the only one that could have potential ramifications for the MSOP. A 2009 federal case brought by the ACLU on behalf of six MSOP enrollees also alleges that they are subjected to illegal strip searches and seizures of personal property. The case was dismissed last year, but the plaintiffs have appealed. Oral arguments are expected to take place in May before the 8th Circuit Court of Appeals. Nelson argues that ultimately the Legislature will need to overhaul the state’s policies for dangerous sex offenders before the perils of legal liability will be significantly reduced.

“It’s very easy for legislators to kind of pander to public sentiment,” Nelson said. “It’s much more difficult to implement good public policy and make sure that you’re following the Constitution and make sure you’re doing what you said you would do when you passed the law.” ..Source.. by Paul Demko

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