Pretend, for a moment, that you're a district judge or a county attorney. One of your jobs is to help determine what happens to a convicted sex offender as his/her release date approaches.
Not an easy task, but to make it even more complicated, assume the offender in question is a 22-year-old who has served two years in state prison. His record indicates he would be at moderate risk of reoffending upon release, so you would prefer to see him receive some specialized treatment before he transitions back into life "on the outside."
But to do that, your only option is to civilly commit him into the Minnesota Sex Offender Program. He will go to one of two facilities — one in Moose Lake, the other in St. Peter — where he will join 683 "patients" who are receiving "treatment" but have virtually no hope of release.
So, are you ready to sentence that 22-year-old to what could be a life behind bars?
Rep. Tina Liebling, who volunteered for the thankless task of serving on the Minnesota Sex Offender Civil Commitment Advisory Task Force, said situations like that demonstrate why Minnesota's civil commitment system needs an overhaul.
"There's some belief that, right now, judges might be hesitant to commit someone who in fact might meet the criteria for civil commitment because they don't want to impose a potential life sentence," Liebling said. "So there's a public safety problem in the current system. One-size-fits-all does not work."
Of course, the more obvious reason the MSOP program needs an overhaul is that, in April 2012, Chief U.S. Magistrate Judge Arthur Boylan ordered Minnesota to begin crafting a new system. At the time, Boylan was hearing pretrial discussions in a class-action lawsuit brought by MSOP patients who claim their indefinite detention is unconstitutional.
Yet, the 2013 Legislature did nothing.
It wasn't for lack of trying on Liebling's part. She wrote legislation that would have given judges, defense attorneys and MSOP officials more options for civil commitment, including new facilities — not "halfway houses" — where lower-risk offenders could receive treatment and strict supervision. Offenders currently housed in Moose Lake or St. Peter who were making good progress also would be eligible to "step down" to one of these other facilities as they worked their way toward a possible release.
Liebling's plan also called for mandatory re-evaluation of each MSOP patient every two years, using a panel of independent examiners to determine whether a patient's progress warranted a hearing for a possible change in placement.
This legislation sailed through the Senate, where Minority Leader David Hann was among nine Republicans who voted for it. "That was quite impressive," Liebling said. "I was really very proud of them."
But things didn't go nearly as smoothly in the House.
"We couldn't move forward with something like this unless it had some bipartisan buy-in," Liebling said. "Otherwise, it would be just too easy for challengers next year to say, 'So-and-so is soft on sex offenders.' That's a big concern in the House, where people have to run every two years."
House Republicans, however, refused to play ball with Liebling. Chief among them was Rep. Steve Drazkowski, the ranking Republican on the House Judiciary Finance and Policy Committee, and Rep. Tony Cornish, who advocates a lock-them-up-and-lose-the-key approach. Liebling's bill squeaked through two committees — including Health and Human Services, chaired by Liebling — but never made it to the House floor.
"The whole thing was pretty disappointing," Liebling said. "Other than Rep. Jim Abeler, who was on the task force and was working with me the whole way, Republicans in the House really disappointed me."
We share that disappointment but not just in Republicans. We believe the DFL leadership should have pushed Liebling's plan through to the House floor, regardless of how many (or how few) Republican votes it received in committee. Nine Senate Republicans stuck their necks out for this bill, and in our book, that's plenty of bipartisan support.
Instead, the Legislature abdicated its responsibility, essentially passing the buck back to a federal judge. Liebling nicely summarized up the irony of the situation.
"Some members of the Legislature give a lot of concern to the idea of state sovereignty, but really, every legislator has a state constitution to protect and should be concerned about the sovereignty of our state," she said. "So the idea that we should just sit on our hands and say 'Go ahead, federal court — do our jobs for us,' is a really troubling thing to me."
Something has to be done. The MSOP program is incredibly expensive — $326 per patient per day, for a total of $73 million this year — and other than keeping offenders off the streets, it isn't producing any positive results.
Liebling's plan is a solid start. If the federal courts haven't decided the matter by next February, then her bill should be a top priority when the House convenes for the 2014 session.