Thursday, August 28, 2014

Patience is no virtue on MSOP injustice. A federal judge seems willing to give Minnesota more time. There's scant evidence it will be used well.

The following guest essay by D. J. Tice was published by the Minneapolis Star Tribune on August 2, 2014.

For many years, critics of the Minnesota Sex Offender Program have worried that this state may be guilty of cruel injustices. 

They’ve worried that Minnesota’s sweeping, inconsistent system for dumping sex offenders who have completed prison sentences into so-called “treatment centers” may be imposing retroactive life sentences on some “clients” who pose no serious threat to the public, while giving them no effective treatment. 

As of this summer, this is no longer a worry. 

Now it’s a fact. 

It took experts appointed by a federal court about two months to find what Minnesota officialdom has been unable to find in two decades — people buried alive in MSOP who have no earthly business there and should be released or transferred to another program. 

And they’ve barely begun to look. 

Unfortunately, a combination of legal complexities and deference toward state officials has caused even U.S. District Judge Donovan Frank to let injustice continue awhile longer. Earlier this month,Frank declined to release or transfer the MSOP inmates his experts had asked him to liberate. Instead, he ordered an expedited trial of class-action claims that the entire MSOP program is unconstitutional. 

About 20 states have “civil commitment” programs like Minnesota’s. Most were enacted in the crime-plagued early 1990s out of legitimate fears that some habitual sex offenders are too dangerous to be released. But many of the other states with such programs regularly review clients’ cases and have developed less-restrictive forms of supervision for offenders who are less dangerous or are making progress in treatment. 

In Minnesota, attempts to contain or reform MSOP have repeatedly become politicized. The result is that the state boasts the largest per-capita population of committed offenders in the nation (nearly 700, costing about $120,000 a year each), in a program offering nothing but prison-like incarceration and no serious path toward success in treatment and release. Just two clients have emerged in the program’s whole history. 

Only last winter, Gov. Mark Dayton released a letter to his Department of Human Services, which runs MSOP, noting that he likes the program just fine the way it is and ordering the department to abandon its efforts to move some clients toward release. He cited “gamesmanship” by his political opponents as the reason. 

Judge Frank seems rather less sanguine about MSOP. In February, as part of the class-action suit challenging the program’s constitutionality, he put four experts to work examining MSOP — including a sample of individual client files. They quickly brought forward two cases they wanted the judge to see right away. 

One involves 24-year-old Eric Terhaar, who has been in MSOP for five years on the basis of offenses committed before he was 15. Insisting that a juvenile record of this kind should be viewed differently than adult sex crimes, the court experts unanimously insisted that “there is little evidence to suggest that Mr. Terhaar is a dangerous sexual offender … .” He should be “unconditionally discharged,” they said. 

The other case brought to the judge is that of Rhonda Bailey, 48, locked inside MSOP since 1993 as the program’s only woman. Suffering an “intellectual disability,” a deeply troubled victim of abuse and trauma since childhood, Bailey, the judge wrote, is being “housed on the St. Peter campus of MSOP as the only female on a unit of all male high risk sexual offenders.”

The court’s experts, unanimously, have “exceptionally grave concerns” about Bailey’s “current housing and treatment scenario.” They declare her situation “unprecedented in contemporary sexual offender treatment and management … .” 

This “unprecedented” achievement isn’t the sort of distinction Minnesota usually boasts of. The experts have a notion that Bailey, while clearly needing treatment and supervision, might do better in “a facility where she can receive care and treatment that is sensitive to both her gender and her clinical presentation.” 

Suddenly, the state seems to think so, too. Confronted with the Bailey and Terhaar cases in hearings before Frank this summer, state officials are now apparently scrambling to find an alternative treatment setting for Bailey and to move Terhaar toward provisional release. (It’s also worth noting that lately state courts have been scrutinizing MSOP commitments more rigorously.) 

For now, Judge Frank seems willing to be patient while the state’s processes unfold. On Aug. 11, he declined to find continued confinement of Terhaar and Bailey unconstitutional, but said he would revisit the questions if the state’s efforts prove inadequate. 

Meanwhile, Frank wants to get on with the trial in the broader class-action case. Last week, he set Feb. 9 as the trial date. 

“It is obvious,” Frank wrote in his Aug. 11 order, “that but for this litigation, Terhaar … would likely have languished for years in the prison-like environment of MSOP-Moose Lake without any realistic hope of gaining his freedom. And of course it is of great concern to the Court that this may not be an aberrant case [but] symptomatic of a larger systemic problem. … This concern is heightened by the experts’ opinion about the grossly inadequate — even shocking — treatment of Bailey … .” 

There is as yet no explanation, the judge wrote, of “how this troubling state of affairs came about.” 

That one’s easy, your honor. It came about because too many judges over too many years have been too patient waiting for Minnesota’s politicians to do the right thing.

Wednesday, August 20, 2014

Robert A. Rosenthal: Miscarriage of compensation

The following commentary by Robert A. Rosenthal was published on August 19, 2014 by the Providence Journal.

Michael Morton’s wrongful conviction in the death of his wife and his 25-year incarceration is told in his just-published book “Getting Life: An Innocent Man’s Journey from Prison to Peace.” His traumatic experience of discovering that his wife had been brutally murdered, followed by a guilty verdict based on shoddy police work, was passionately recounted by Nicholas Kristof in The New York Times a few weeks ago.
In it, Kristof recounts the miscarriages of justice suffered by not only Mr. Morton but many others, as carefully documented by the Innocence Project — an organization that works diligently to provide legal services to help exonerate the wrongfully convicted. Clearly, the more than 218 cases of those exonerated for crimes they did not commit speaks to the simple conclusion, as Morton contends, that “our criminal justice system is profoundly flawed.”
It has been well documented that such miscarriages of justice often disproportionately impact minority populations — particularly blacks and Hispanics. But such inequities are only compounded by a little-known fact regarding the manner in which these exonerated individuals are compensated for the miscarriage of justice upon their release from prison.
According to compensation laws in Texas, Mr. Morton is eligible to receive approximately $2 million for the time he was denied his freedom. The State of Texas, as per a 2011 amended law, stipulates that a wrongfully convicted person is entitled to $80,000 per year of wrongful incarceration. Colorado and Florida, as well, have laws providing comparably liberal compensation packages.
Imagine if he had served time in the Illinois criminal justice system. His compensation would have amounted to a mere $199,150, a sum provided to anyone wrongfully imprisoned for any period in excess of 14 years. This would convert to, in the case of Mr. Morton, compensation on an annual basis of only $8,000, or 10 percent of what the Texas law allows.
Or, take the case of Michael Williams, falsely convicted of rape at age 16, and sentenced to life in prison. Four years following his release from prison at age 40, he was paid $150,000 by the state — just over $6,000 for each year of his wrongful incarceration.
While state compensation laws vary widely, only about half of the states have statutes compensating the wrongfully convicted. This is partly responsible for the fact that, of the 218 people exonerated by DNA testing, only about 50 percent have received any form of compensation to date. The recommended federal level of compensation is currently $50,000 per year. Sadly, of those exonerated, only one in five of those compensated under state laws received compensation equal to or greater than the federal standard.
While some states also provide various services such as job training, reintegration services, tuition assistance, counseling and other such services, there remains the difficulty of getting society to believe that you are actually innocent or, at least, as Mr. Williams told The Wall Street Journal, “not damaged.” He added: “It’s been lonely, very lonely.”
Financial compensation cannot alter these prejudices. To suggest that Mr. Morton was lucky to be imprisoned in Texas would be heartless and perhaps even hurtful. I suspect few would be willing to trade 25 years of freedom for any sum of money. Nevertheless, the extraordinarily wide differential of the dollars given to the exonerated speaks to an undercurrent of the inequality we currently place on the value of lost freedom or life itself.
A question that must be asked is whether the right of the state to determine how the wrongfully convicted are compensated severely infringes upon the rights of those who are wrongfully convicted. The injustice that begins with a wrongful conviction, in too many cases, seems to extend well beyond the time that one’s freedom is granted.
Robert A. Rosenthal is a professor of economics at Stonehill College in Easton, Mass. He studies the value of economic loss.