Minnesota Supreme Court Denies Qualified Immunity for Delayed Transfer of Sex Offenders
by Mark Wilson
On February 1, 2023, the Minnesota Supreme Court held that civilly committed sex offenders have a clearly established right to transfer to Community Preparation Services (CPS) within a reasonable time. What is reasonable under any given circumstances, however, is a fact issue to be determined in the first instance by the trial court, the high court added.
Minnesota is one of 20 states allowing civil commitment of sex offenders. Along with a wave of “tough on crime” laws passed about the same time, the state opened its high-security Minnesota Sex Offender Program (MSOP) in 1994 in Moose Lake.
About 93% of MSOP’s 741 residents were civilly committed after completing a prison sentence for a sex offense. The rest have been locked up with no clear path to release even though they have never been charged with a sex offense. The state has the nation’s highest per-capita sex offender commitment rate and one of the lowest release rates. In fact, during MSOP’s first two decades of operations, nobody was released. Those committed are essentially confined for life – about six times more likely to die there than be released.
Those confined call MSOP a “shadow prison” hidden from public view. “This place is a secret – in a remote location, cut off from others,” said MSOP resident Duncan Brainard, 35, who was committed in 2010. “People don’t know this is happening in America.”
A Minnesota prosecutor may petition to civilly commit anyone allegedly likely to engage in harmful sexual acts or unable to control dangerous sexual impulses. A judge may order civil commitment if the State proves those allegations by clear and convincing evidence – a lower threshold than beyond a reasonable doubt.
“Anyone can file a petition for commitment,” noted Daniel Wilson, 36, who was committed after completing a three-and-a-half-year prison term for a fourth-degree sex crime. “You could make up something about your neighbor and file a petition, and there’s a chance they’d be committed.”
“The only way you can make the argument it’s OK to lock up nine to prevent one from committing a crime is that these people’s lives don’t matter, that they’re not really human citizens, that their liberties and freedoms are expendable,” said Eric Janus, former dean of William Mitchell Law School at St. Paul’s Hamline University, who authored Failure to Protect: America’s Sexual Predator Laws and the Rise of the Preventive State. “It’s kind of un-American to say, ‘We’re going to lock you up before the crime.’”
In response to a 2010 legislative audit, the Minnesota Department of Human Services (DHS), increased MSOP group therapy sessions from six to 10 hours a week. Fifteen residents were released outright and another 57 were discharged to housing under MSOP supervision.
In 2015, a federal judge ruled in a class-action suit that MSOP had become punitive rather than therapeutic and was, therefore, unconstitutional. The judge cited MSOP’s low release rate and lack of regular evaluations to review the basis of a resident’s commitment. The decision was short-lived, however; the U.S. Court of Appeals for the Eighth Circuit reversed and remanded the case to the district court, which then ruled in February 2022 that MSOP residents may continue to be detained but “politics or political pressures should not compromise Class Members’ rights to treatment and eventual reintegration into society.” The Eighth Circuit affirmed that ruling on July 13, 2023. See: Karsjens v. Harpstead, 2022 U.S. Dist. LEXIS 31842 (D. Minn.); and 2023 U.S. App. LEXIS 17742 (8th Cir.).
Several studies show the recidivism rate for sex offenders released from programs like MSOP is under 5%. Of more than 150 people moved to less secure facilities or released outright from MSOP since 2016, state authorities are not aware of any who have committed another sex offense. In total, 204 MSOP residents have been referred to the less restrictive setting of Community Preparation Services (CPS). But DHS has insufficient CPS capacity to accommodate more. After repeatedly rejecting funding requests to increase CPS capacity, the legislature in 2020 finally granted $1.8 million to add 20 CPS beds. Even so, at least 31 MSOP residents remained on the CPS waiting list for two years or longer.
Two of those residents sued in state court under 42 U.S.C. § 1983, alleging the overlong delay of their transfer deprived them of due process. The court agreed that Plaintiffs sufficiently alleged a due process violation but dismissed the suit, granting Defendants qualified immunity because it was not clearly established that Plaintiffs had a right to transfer to CPS within a reasonable time of a transfer order from the Minnesota Commitment Appeals Panel (CAP).
The Court of Appeals affirmed, but the Minnesota Supreme Court reversed, holding that MSOP residents have a clearly established right to CPS transfer within a reasonable time of issuance of the CAP transfer order. It remanded the case to the Court of Appeals, which in turn remanded it to the Ramsey County district court to determine the fact issue of what amount of time is reasonable in any given circumstance. See: McDeid v. Johnston, 984 N.W.2d 864 (Minn. 2023); and 2023 Minn. App. Unpub. LEXIS 554.
The case remains pending, and PLN will update developments as they are available. Plaintiffs are represented by attorneys from Dorsey & Whitney LLP and Stoel Rives LLP in Minneapolis. See: McDeid v. Johnston, Minn. 2nd Jud. Dist. (Cty. of Ramsey), Case No. 62-CV-19-8232.
Additional source: Minnesota Monthly