But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. -Declaration of Independence of the United States of America
ST. LOUIS — The lengthy legal debate over a Minnesota program that keeps sex offenders confined indefinitely after they complete their prison sentences shifted south Tuesday as state officials urged a federal appeals court nearly 500 miles away to overturn a judge’s ruling that the program is unconstitutional.
Minnesota Solicitor General Alan Gilbert told a three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis that District Judge Donovan Frank “lost his neutrality” when he made critical comments before ruling last summer. Even before his ruling, the judge called the program “draconian” and said it is “clearly broken” and needs to be reformed.
Only a handful of offenders have been provisionally released to community-based settings in the Minnesota Sex Offender Program’s 20-plus-year history, which is why the plaintiffs in the class-action lawsuit say it’s tantamount to a life sentence.“He has prejudged the program,” said Gilbert, who asked the jurists to reverse the lower court ruling and appoint a new judge to consider the suit by 14 plaintiffs on behalf of the more than 700 civilly committed offenders. The panel did not immediately issue a decision after hearing 20-minute presentations by both sides.
While civilly committed offenders in California, Wisconsin, New Jersey and other states are allowed to re-enter society after completing treatment, no one has been fully discharged from Minnesota’s program.
The Minnesota case is being closely watched by lawyers, government officials and activists in the 20 states with such programs, including Missouri, where another federal judge based in the same courthouse where Tuesday’s appeal was heard cited a “pervasive sense of hopelessness” in a sex offender rehabilitation program in which about 200 people remain indefinitely committed.
“It’s a prison disguised as a mental health facility,” said St. Louis attorney Richard Scherrer, who is involved in the Missouri case and listened to the oral arguments in the Minnesota appeal.
In his June ruling, Frank didn’t shut the Minnesota program down but ordered changes, including risk assessments of participants to determine who should be put on a pathway for release. The Missouri-based appellate court put Frank’s order on hold in December pending the state’s challenge.
In asking the appellate court to uphold the ruling, Minneapolis plaintiffs’ attorney Daniel Gustafson countered that Frank’s comments only cited publicly available information — including a report by the state’s legislative auditor — and were intended to encourage a swifter resolution of a legal challenge that began in 2011.
“There’s (been) no animosity directed toward the state at all,” he said, referring to the judge.