In June, 2015, the US District Court for Minnesota determined that the 700+ clients at the Minnesota Sex Offender Program were being unconstitutionally confined. In January, 2017, the US Court of Appeals for the Eighth Circuit said they�re not. What explains the conflicting opinions? A three-judge Appeals Panel said District Court Judge Donovan Frank did not apply the proper standard: to be unconstitutional, civil rights violations for SVPs must �shock the conscience.� What�s wrong with the �shocks the conscience� standard? If, until the Supreme Court intervened in 2008, executing sex offenders in the US didn�t �shock the conscience,� how can any lower court know where that bar is?
A Brief Recap. In December, 2011, 14 clients who had been civilly committed and incarcerated at MSOP, some for more than 20 years, filed a civil rights lawsuit in the US District Court for Minnesota. The Federal Court determined the petition had merit, gave it class status, and from 2012 to 2015, Judge Frank carefully reviewed the sexual offender civil commitment (SOCC) scheme in Minnesota, examined MSOP (effectively, SOCC as applied), considered multiple independent reports, ordered the State to create a task force to make recommendations, appointed four (ATSA) experts to advise the Court, implored Minnesota political leadership to correct course, held a six-week evidentiary trial, and considered all the evidence before issuing his well-reasoned ruling. Judge Frank found the SOCC Act in Minnesota unconstitutional for six reasons, and MSOP unconstitutional for six related reasons. The State appealed to the Eighth Circuit.
The State Appealed. In Appeal briefs, the State argued that plaintiffs failed to identify any specific clients who were improperly confined. Attorneys for clients countered that the State doesn�t know which clients at MSOP currently meet criteria for confinement. The State alleged judicial bias. The Eighth Circuit said Judge Frank had not acted improperly. The State raised three challenges to jurisdiction. The Eighth Circuit rejected all of them. The State argued that the District Court erred in applying the �strict scrutiny� standard to the SOCC scheme in Minnesota, which therefore requires SOCC to be �narrowly tailored to achieve a compelling governmental interest.� Therein lies the Eighth Circuit�s reversal.
The Eighth Circuit said that �strict scrutiny� and �narrowly tailored� is the standard �reserved for claims of infringement on �fundamental� liberty interests...� but that the US Supreme Court (SCOTUS) �has never declared that persons who pose a significant danger to themselves or others possess a fundamental liberty interest in freedom from physical restraint,� and that therefore the proper standard is whether SOCC �bears a rational relationship to a legitimate government purpose.� With deference to legislative intent and a state�s responsibility for public safety, the Eighth Circuit reversed all six of Judge Frank�s unconstitutional determinations related to Minnesota�s SOCC scheme.
The Eighth Circuit went on to examine how the State has implemented SOCC. The Appellate Court held that the District Court should have determined whether actions violated a fundamental liberty interest AND whether those actions �shock the conscience:� actions by the State that were �egregious or outrageous,� or �inspired by malice or sadism rather than merely careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse of official power literally shocking to the conscience.�
In applying the �shocks the conscience� standard, the Court held that those attacking the implementation of SOCC laws have the burden to �negate every conceivable basis which might support it.� The Appellate Court acknowledged that Minnesota State law entitles SVP clients to �competent medical care and treatment,� but that SCOTUS has not recognized �a broader due process right to appropriate or effective or reasonable treatment�� And finally, the Eighth Circuit reversed Judge Frank�s six remaining unconstitutional findings regarding SOCC �as applied,� saying those findings were really just �a criticism of the statutory scheme itself.�
Reconsideration. As the last recourse before an appeal to SCOTUS, on January 31, 2017, the attorneys representing MSOP clients filed an �en banc� petition � a request for the full Eighth Circuit to reconsider the three-judge panel�s ruling. Last week, without comment, the US Court of Appeals denied the plaintiffs� petition for review.
Commentary. After more than 20 years and about 750 clients, two clients have been unconditionally released by the Courts (over the objections of MSOP staff), and no clients have gained full discharge by completion of treatment. Since the commencement of this federal lawsuit, about a half-dozen clients have been provisionally released from MSOP, but effectively that means endless treatment is replaced by endless supervision.
Judge Frank expressed concern that, if not for this federal lawsuit, clients would languish at MSOP and wrote that �there is no meaningful relationship between the treatment program and an end to indefinite detention.� The Eighth Circuit said that doesn�t matter - as long as clients were once judicially determined to be dangerous, and there are vehicles for redress, they can be confined indefinitely. What if vehicles for redress are inadequate or a pretense for relief? Does it seem disingenuous that the State can confine citizens indefinitely for treatment, and simultaneously argue that there is no constitutional right to treatment? The Appellate Court went further, stating that the Constitution does not prevent �a State from civilly detaining those for whom no treatment is available.� What if treatment is available, but no one can complete it?
Apparently, it isn�t troubling to the Eighth Circuit that the bar for release from MSOP is higher than the threshold into SOCC? Or that the State agrees there are numerous clients at MSOP who don�t need secure confinement, and less restrictive alternatives are virtually non-existent. It seems the Eighth Circuit is not concerned that for several years, two consecutive governors used executive orders to summarily deny any releases from MSOP. Perhaps what is most troubling about the Eighth Circuit ruling is the degree to which the Court reasoned that bedrock civil rights are relative, not absolute. Freedom from confinement is not a �fundamental liberty interest?� Violations of civil rights for SVPs are only unconstitutional if such deprivations �shock the conscience?� When it comes to what the State can do to control �sex offenders,� is it likely that there is anygovernment action, in the public�s mind, that would �shock the conscience?�
Long before this federal lawsuit, law professor Rosalie Berger Levinson wrote that it is Time to Bury the Shocks the Conscience Test. The Minneapolis Star Tribune editorial board wrote, �This chilling legal principle could one day threaten liberties far beyond those of the 721 people in the Minnesota Sex Offender Program.� In an op-ed piece about the ruling, Harvard Law Professor Noah Feldman wrote, �The Eighth Circuit panel�s decision is wrong,� pointing to a SCOTUS opinion by Justice Byron White that �freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.� Feldman noted that the specific liberty at stake was the �liberty interest under the Constitution in being freed from indefinite confinement in a mental facility.�
States have an essential right and responsibility for public safety, but they also have a responsibility to protect civil rights for all citizens. SVP programs have a dubious history, including human rights violations, pushing the limits of forensic psychology, a high tolerance for false positives, and inherent ethical dilemmas. Perhaps most disconcerting, is the extent to which �sex offenders� are becoming alienated from constitutional rights. Driving the bus is a false presumption of dangerousness, the marginalization of sound research, and broad public support for sex offender banishment.
The Eighth Circuit ruled that SOCC in Minnesota is �facially constitutional because it is rationally related to Minnesota�s legitimate interests.� By reversing Judge Frank�s highly principled ruling, the Eighth Circuit effectively held that it�s not a problem that the exits from MSOP are unabashedly blocked, even if the reasons are incontrovertibly political. The Appellate Court wrote repeatedly in their opinion that the Supreme Court has not provided guidance on many of issues facing SOCC, and then simply ruled on the side of state�s rights. In doing so, the Eighth Circuit ratified SVPs as a subclass of US citizens whose constitutional rights are far short of even prison inmates.
What�s Next? Attorneys representing MSOP clients have 90 days to appeal to the US Supreme Court. Even if the appeal is accepted, it might end up being just the latest in a long series of SCOTUS rulings that, through the selective application of empirical evidence, have downgraded the civil rights of Americans who have sexually offended. But there is a reason to be hopeful � MSOP clients and other SVPs who are truly in recovery might have an ally at the Supreme Court. Justice Anthony Kennedy was the swing vote in the 5-4 SCOTUS decision that upheld SOCC in 1997. While Justice Kennedy, in his concurring opinion in Kansas v. Hendricks, agreed to SOCC in concept, he signaled that the judiciary must ensure SOCC, in practice, does not violate constitutional principles. If the Supreme Court accepts the appeal, Judge Frank might be vindicated, a SCOTUS ruling would provide new guidance to SVP laws in the US, and MSOP clients may have a legitimate vehicle to gain release from SOCC. Once again, only the courts stand between civil rights and government wrongs, and not all judges are created equal.
��the Framers presciently recognized that two of the three co-equal branches of government were representative in nature and necessarily would be guided by self-interest and the pull of popular opinion. If we in the judiciary do not have the authority, indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.�
US Court of Appeals for the Sixth Circuit
Jon Brandt, MSW, LICSW
Special thanks to Eric Janus, Mitchell Hamline law professor, for guidance in understanding the Eighth Circuit appeal.
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