Over the last two decades in Wisconsin, hundreds of sex offenders have been released from secure treatment facilities into communities across the state. That’s in stark contrast to what’s happening in Minnesota, where the sex offender treatment program holds more than 700 offenders — but has never fully released a single one.
The differences could become increasingly important as Minnesota grapples with an edict from the courts that its program must be changed.
In June, U.S. District Judge Donovan Frank ruled that the Minnesota Sex Offender Program (MSOP) and its method of treating offenders — most who have already completed their prison sentences — is unconstitutional because it promises treatment but provides little realistic hope of ever being released. Frank has called legislators, Gov. Mark Dayton and other stakeholders into his St. Paul courtroom on Aug. 10 to present “suitable remedies” to problems he outlined with the program.
“This case has never been about the immediate release of any single committed individual or committed individuals,” Frank wrote in his 76-page ruling after weeks of trial in a class action lawsuit against MSOP. “Recognizing that the MSOP system is unconstitutional, there may well be changes that could be made immediately, short of ordering the closure of the facilities, to remedy this problem.”
Despite Frank’s ruling, there are those in Minnesota — most notably the lawmakers who have resisted changes in the past — who believe that even after the dust settles, MSOP shouldn’t look too different from what the way it does today.
For others, however, re-imagining a different MSOP isn’t that difficult. Over the years, the controversial program has been dissected by expert panels, task forces, academics, the state legislative auditor and now the courts — with many of those involved reaching very similar conclusions about how Minnesota could administer its sex offender program in a way that would make it both more effective, and constitutional.
Wisconsin and New York as models
When it comes to treating sexual offenders, Minnesota and Wisconsin couldn’t be more different. Both states set up their respective civil commitment programs to treat sexually dangerous offenders about two decades ago, but over that time period, Wisconsin has granted full release to more than 100 offenders and supervised release to at least 130 more. And though there are more than 350 offenders currently confined in the secure Sand Ridge Facility in Mauston, they’re reviewed regularly to see how they are progressing through their treatment. Many will be considered for release in the coming years.
In Minnesota, only two people have been successfully released — both on a provisional basis — from behind the secure treatment facilities in Moose Lake and St. Peter. And since the 2003 murder of college student Dru Sjodin at the hands of a Minnesota sex offender released from prison six months before the killing, the population living inside MSOP has spiked.
One of the key differences between the programs is Wisconsin’s regular review of how clients are progressing through treatment. One year after an offender is committed to the program, the process of review can begin, even while the state is continually setting up less-restrictive options for the offender to live outside of the facility.
In Minnesota, there’s no requirement in law to regularly review an offender's status, making it harder to move the person through the various phases of treatment in MSOP, experts say. And though experts suggest that every offender should be reviewed at least once a year, such a change would require MSOP to hire considerably more clinical psychologists and mental health professionals.
“[In Wisconsin], they look at people periodically to determine whether they pose any risk and can be appropriately managed in the community,” said Eric Janus, president and dean of the William Mitchell College of Law, who has written a book on state sex offender laws. “They’ve had really good results moving people into community-based settings, and my understanding is without any tragic consequences.”
New York takes that model a step further, allowing some offenders to move into less-restrictive facilities on the front-end of their civil-commitment. At the end of an offender’s prison sentence in New York, they are reviewed for their potential danger to society by clinical psychologists. The more dangerous offenders are sent to a secure treatment facility, while others are sent to Strict and Intensive Supervision and Treatment (SIST) in community-based settings. As of 2012, New York put 114 people in less-restrictive environments instead of locked up in a secure facility.
In Minnesota, being admitted to MSOP through civil commitment is the only option for treatment, one some experts say isn’t appropriate for all offenders.
Last summer, an expert panel from sex offender programs in Florida, Wisconsin and New York told Frank’s courtroom that two offenders, Eric Terhaar and Rhonda Bailey, should be released or relocated from the program immediately. Terhaar is part of a group of more than 60 adults in the program who were sent to MSOP for offenses they committed as juveniles. The experts said such offenders are far less likely to reoffend than those who committed sexual offenses as adults, and their treatment should be separate from that of others in the program. Bailey is the only woman ever committed to MSOP and is treated in a facility with all other men.
“It breaks every rule research tells us we should follow,” Robin Wilson, one of the court-appointed experts, said in August. Officials from both New York and Wisconsin sex offender treatment programs declined to comment for this story because they were involved in the class action suit as part of an expert panel appointed by the court.
Dan Gustafson, an attorney for the clients who sued the state over MSOP, plans to point to the New York model as a good alternative to current MSOP practices at the Aug. 10 hearing. For Gustafson, the key difference between the Minnesota and New York programs is that the latter takes “the important decision making functions out of the political leadership and [puts it] into the hands of medical professionals,” he said. “The decisions are being made based off professional judgments, not political judgments.”
Legislators consider less restrictive options
Some lawmakers have their own ideas.
DFL Sen. Kathy Sheran, whose district includes the St. Peter sex offender campus, is among a small group of lawmakers who want to see the program overhauled.
In 2013, she passed a bill out of the state Senate — with bipartisan votes — that required more frequent review of offenders and set up new facilities for the less dangerous clients in the program. The bill also established a two-step hearing process that aimed to apply consistency in in civil commitments, which are determined now by judges in all 87 counties. The first hearing would determine whether civil commitment was needed; the second would decided what kind of placement is necessary.
This year, Sheran wanted to add a new provision to her bill, one suggested by Republicans in the Senate: Create indeterminate sentences for sex offenders to put more burden on prisons to determine whether offenders are truly ready for release.
“There’s so much misinformation,” Sheran said. “Most people assume everyone in MSOP are the worst of the worst, but the truth is that there are huge variations in the people locked up in there. Some are highly dangerous, some are not.”
But work on a bill has repeatedly stalled in the state House, under both DFL and GOP control. Republicans in control of the chamber now maintain the program is constitutional, and is the best option for protecting the public. There are risks in releasing more offenders: A 2013 state audit of the Wisconsin program found that between 1994 and 2010, the state discharged 67 offenders. Of those, 13 offenders committed new crimes within three years and five were convicted of sex crimes.
Proposals may not go far enough
Rep. Nick Zerwas, R-Big Lake, who has been involved in MSOP negotiations in the past, prefers a solution that takes some of the more vulnerable populations inside the program — the elderly or those who have cognitive disabilities that make treatment difficult — outside the razor wire and into a less restrictive facility. The oldest client inside MSOP is 93. The key for Republicans: that the facility be located on the MSOP campuses in Moose Lake or St. Peter, not in any new communities.
“There is a way to get people who do not belong or need to be behind two layers of razor wire, because they are sick and they are significantly older or they have to have the mental capacity to work through the treatment programs,” Zerwas said.
But that solution might not go far enough to satisfy the judge that the program is constitutional, Janus said.
“You can’t generalize. It’s important and critical to the constitutionality that everyone be assessed individually,” he said. “For some people that will be fine solution, but the key to all of this is to start talking about people in MSOP as individuals, not as part of some big group.”
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