Can courts send more people into the program?

MINNEAPOLIS — A federal judge’s declaration that Minnesota’s civil commitment setup for sex offenders is unconstitutional has raised serious questions about whether prosecutors can keep asking the state’s courts to send more offenders into the program as they approach release from prison.

U.S. District Judge Donovan Frank ruled last week that the Minnesota Sex Offender Program, and the state law that allows for indefinite civil commitments of sex offenders, are unconstitutional. Experts on the process agree that will affect commitment cases that are already in the legal pipeline or could enter it soon — and that his ruling raises new opportunities for defense lawyers to try to keep their clients out of a program that has never fully released anyone in its more than 20 years.

“I’m sure it’s going to be a contentious issue,” said Eric Janus, president and dean of the William Mitchell College of Law. “If I were representing somebody I would be raising those issues on pending commitment matters.”

Olmsted County Attorney Mark Ostrem said he received a copy of a motion in Monday’s mail seeking dismissal of a commitment petition that he filed just last week. Frank’s order was attached.

At least two other defense attorneys representing sex offenders involved in commitment proceedings also plan to file motions soon to try to take advantage of Frank’s ruling.

“What do we do when we have a judge ruling that the program itself is unconstitutional?” said Ryan Magnus, a Mankato lawyer who has three clients with pending cases.

Brian Southwell, a Minneapolis attorney who has one client in the pipeline, said he plans to ask the judge in the case to put those proceedings on hold until the legal landscape becomes clearer.

It’s up to county attorneys to petition courts to commit offenders to the program. Frank’s ruling creates a dilemma for them, said Robert Small, executive director of the Minnesota County Attorneys Association.

“We’ve done a fair amount of thinking, and a fair amount of thinking has resulted in a not-very-clear picture of what is going to happen,” Small said.

Yet to be settled is whether the state courts are bound by the federal court’s declaration or if they’re bound for now by earlier Minnesota Supreme Court decisions that have upheld the program as constitutional, Southwell said.

Doug McGuire, coordinator of the Hennepin County Bar Association’s civil commitment defense panel, said he thinks the state Supreme Court precedents would trump Frank’s ruling for now.

The MSOP houses about 715 people at its prison-like facilities in Moose Lake and St. Peter. While counties file fewer petitions than before, the state still projects the number of civilly committed sex offenders will top 1,200 by 2022, Frank noted in his ruling. He did not order any releases but urged top state officials to propose remedies that would make the program pass constitutional muster when the next phase of proceedings in the federal case begins in August.

It’s not clear exactly how many sex offender commitments are pending statewide. The Department of Corrections could not immediately provide an exact figure. But new cases keep coming up as convicted offenders approach release from prison.

Corrections Department spokeswoman Sarah Latuseck said the agency has forwarded 28 potential cases to counties so far this year, and that counties are still considering about 100 from prior years — but those may not all result in commitment petitions. Most offenders become eligible for supervised release after they’ve served two-thirds of their sentences. For sex offenders, the conditions often require close monitoring and sex offender treatment in the community.

Magnus and Southwell said one option is for the courts not to commit more offenders to the program until the federal case plays out, and to allow the Corrections Department to supervise their releases like any others for now. Magnus said the counties would still have the option to petition to commit them later if that proves necessary.