January 29, 2016 Articles

Karsjens v. Jesson as Ordered: Liberty, Politics, and the Unpopular

The efforts to correct the long-standing constitutional infirmities of the MCTA and MSOP, as found by the court, will continue.

Mária Zulick Nucci

In Karsjens v. Jesson, No. 0:11-cv-03659-DWF-JJK, a class of persons civilly committed under Minnesota’s Sex Offender Program (MSOP) challenged the facial and as-applied constitutionality of the Civil Commitment and Treatment Act (MCTA) (Minn. Stat. § 253D) and MSOP in federal court. The history of the MCTA, MSOP, and the six-week trial were detailed by Eric. S. Janus and Jon Brandt in “Karsjens v. Jesson: Challenging the Un-Civil Commitment of Civil Rights,” in the Summer 2015 issue of this newsletter.

On June 15, 2015, Judge Donovan W. Frank issued his findings of fact, conclusions of law, and order, concluding that the statute was unconstitutional on its face and as applied, and directed the parties to develop remedies and relief to correct the deficiencies in MSOP, beginning with an August 10, 2015, remedies phase pre-hearing; several nonparty public officials and private sector persons were encouraged to participate in the pre-hearing.Karsjens, slip op. at 75–76.

Trial and Ruling

The court began by stating that civil commitment is not to be used as a de facto substitute for incarceration, as it lacks the retribution and general deterrence elements of criminal law. Id.at 2 (citing Kansas v. Hendricks, 521 U.S. 346, 373 (1997) (Kennedy, J., concurring)). Commitment thus cannot be misused simply to remove “undesirables” from society. The court noted the particular stigma attached to sex offenders but declared that, despite claimed “‘scientific’” advances in predicting behavior, a person cannot be imprisoned because he or she might commit a crime. Id. at 3. Because civil commitment is a deprivation of fundamental liberty, the law must “ensure that the civil commitment process is narrowly tailored so that detention is absolutely limited to a period of time necessary to achieve these narrow governmental objectives” of treating acute symptoms of mental illness and protecting the public from “truly dangerous” persons. Id. at 2.

Next, the court reviewed the history of Minnesota’s civil commitment and sex offender laws and the trial evidence, pointing out that, since MSOP began in 1994, the number of committed persons continually increased, with more than 700 now indefinitely committed; not one person has been fully discharged. Id. at 3–9. Over the years, several official studies were critical of the MCTA and MSOP. Id. at 15. However, both the criminal and civil processes were tightened after a series of high-profile rape and murder cases in the late 1980s and early 1990s, and another in 2003. Id. at 8–13. More recent legislative reform efforts, from 2013 to 2015, did not pass. Id. at 16–17.

Witnesses testified to a sense of hopelessness and despair among residents of MSOP facilities, due largely to problems in administering the phased treatment program and in providing sufficient housing, where some could be given less restrictive options, if they were available, including community placement, without compromising public safety. Id. at 19–35. MSOP’s problems included the use of “Matrix factors” to evaluate treatment progress, although treatment professionals were not properly trained in their use; moreover, these “factors” were not used in any other commitment program. Id. at 29. The MCTA does not require periodic risk assessments for determining the need for continued commitment or qualification for discharge, even for juvenile-only offenders, shown to be low-risk offenders.Id. at 36–39. MSOP has 67 “‘juvenile-only offenders’” committed. Id. at 19–20 n.6.  

Not until 2014 did the risk-assessment process incorporate the standard set forth in Call v. Gomez, 535 N.W.2d 312 (Minn. 1995). In Call, a convicted offender received treatment through the correctional system and was fully discharged despite evidence of numerous sex offenses, including while in treatment. The state supreme court held that decisions on the commitment of a “psychopathic personality” required application of the criteria of section 253B.18, subdivision 15, of the Minnesota Statutes. Karsjens, slip op. at 41. As suggested by the absence of any full discharge for the 20-year duration of MSOP and the housing constraints, there were significant difficulties in both the petition and habeas processes for committed persons to seek a reduction in custody, transfer to another facility, and provisional or full discharge. Id. at 49.

In its conclusions of law regarding the facial challenge to the MCTA, the federal court inKarsjens first reiterated that civil commitment is a “‘massive’” curtailment of liberty. Id. at 52 (citing Vitek v. Jones, 445 U.S. 480, 491–92 (1980)). Accordingly, the strict scrutiny standard, the highest standard for evaluating the constitutionality of government action, is applied to protect this fundamental right to live free of physical restraint. Id. at 53 (citing Washington v. Glucksberg, 521 U.S. 702, 721 (1997); Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (permissible commitment length)). The court again noted that not one person was released from MSOP in more than 20 years and again cited Hendricks, that laws cannot allow commitment beyond the time a person is no longer dangerous nor suffers mental illness, or those laws are punitive in purpose or effect, negating their non-punitive civil objectives. This is the narrowly tailored standard, protecting liberty against the compelling state interests of treating offenders and protecting the public. Id. at 54–55 (citing Hendricks, 521 U.S. 346, 361–62).

Under this standard, the MCTA was facially invalid because (1) periodic risk assessments were not required; (2) no judicial bypass mechanism to the statutory process was provided; (3) criteria for discharge were more stringent than those for commitment; (4) committed persons bore the burden of proof in seeking less restrictive settings upon commitment or transfer from MSOP; (5) facilities were inadequate, with no less restrictive alternatives available upon commitment nor facilities that “best [meet] the person’s needs”; and (6) the MCTA did not require the state to act for persons who no longer required continued commitment. Id. at 56–59.

As applied, the law was unconstitutional, again, because persons were confined beyond the time they met the criteria for reduced custody or the constitutional standard for continued commitment. Id. at 60. The court summarized the numerous problems with MSOP, including problems with risk assessment, housing, delays in progressing committed persons through treatment, staffing shortages, and changes in the program over the years. Id. at 61-64.

Judge Frank readily acknowledged the varied sensitivities in sex-offense cases, having been a prosecutor and state court judge and having received letters not only from victims and their relatives but also from families of committed persons and others who stated they had had involvement with MSOP. Id. at 68–69 & n.8. He detailed evidence of the politics, public opinion, and political pressures affecting MSOP. Id. at 68 n.7. Where liberty is harmed, however, “politics or political pressures cannot trump . . . fundamental rights. . . . The Constitution protects individual rights even when they are unpopular.” Id. at 68. He quoted retired U.S. Supreme Court Justice Sandra Day O’Connor: “‘A nation’s success or failure in achieving democracy is judged in part by how well it responds to those at the bottom and the margins of the social order.’” Id. (quoting “Third Annual William French Memorial Lecture: A Conversation with Retired Justice Sandra Day O’Connor,” 37 Pepp. L. Rev. 63, 65 (2009)).

Remedies, Recent Actions


To begin remedying MSOP’s enumerated infirmities, Judge Frank ordered a remedies phase pre-hearing for August 10, 2015, for the parties to present proposals for improvements to the program, with himself and a U.S. magistrate judge presiding; he invited several nonparties to participate, including several high-ranking state executive and legislative officials. Id. at 75–76.

Karsjens did not proceed directly to the pre-hearing. In its July 22, 2015, memorandum opinion and order, the court denied the defendants’ request for certification of appeal. In itsAugust 7, 2015, order, it denied media parties’ motion to intervene and gain access to proceedings, a further indication of the level of public interest in sex-offense matters and how the legal system addresses them. On August 12, the court issued a scheduling order for proposals, briefs, and reply briefs, again asserting “the history of the state’s failure to meet minimum constitutional requirements,” causing continued injury and harm. Lack of funding was no defense to this failure, which, if it continued, “may demand a more forceful solution.” Scheduling order at 3.

That order arguably resulted from events at the August 10 pre-hearing. In the Plaintiffs’ Remedies Proposal and Brief in Support of the Remedies Proposal, the plaintiffs stated that, at that pre-hearing, which was attended by certain nonparty state officials and other interested persons, the defendants “refused to propose remedies,” indicating instead their belief that the MCTA and MSOP were constitutional; they did agree to respond to the plaintiffs’ proposals. Id. at 5–6. The plaintiffs then detailed proposed remedies for the numerous deficiencies in MSOP as found by the court and requested injunctive relief. Id. at 20–30.

On October 29, 2015, Judge Frank issued a 43-page First Interim Relief Order, detailing terms and deadlines for the defendants to take various specified remedial actions. The defendants were to conduct risk assessment and treatment phase reevaluations. The court presumed these will be completed by December 31, 2017. They were also ordered to take other remedial actions or face an injunction against enforcement of the MCTA, preclusion of further commitments under the MCTA, and contempt sanctions. A former Minnesota supreme court chief justice will act as special master regarding compliance with the remedies, and the court will retain jurisdiction for five years from the date of final judgment.  

Most recently, on November 2, 2015, the plaintiffs filed a prisoner petition in the U.S. Court of Appeals for the Eighth Circuit. Karsjens v. Jesson, No. 0:15-pr-03485.

Conclusion 


Clearly, the efforts to correct the long-standing constitutional infirmities of the MCTA and MSOP, as found by the court, will continue. The record of events and filings after the June 15 order arguably indicates that the defendants might be affected by the “public opinion,” i.e., “political,” aspects of the MCTA and MSOP, as Judge Frank discussed in the conclusion of his order. This is consistent with sentiments, raised repeatedly over time, such as the following: “tough on crime” as opposed to “soft on crime,” “molly-coddling criminals,” “why should criminals have any rights,” “victims’ rights,” and “protect our kids.” The court inKarsjens repeatedly made clear that protection of the public and sensitivity to victims and their relatives are and will remain compelling state interests justifying civil commitment, even continued commitment. Those interests, however, cannot defeat the liberty interests of all who have been civilly committed, “unpopular” though they might be. As Justice O’Connor stated, it is part of the success of democracy.

Keywords: litigation, access to justice, civil commitment, sex offender, fundamental rights, substantive due process, liberty, strict scrutiny, physical restraint

Mária Zulick Nucci graduated from Temple University School of Law, where she was an editor of two publications and won sports law and trial advocacy awards.


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