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Speaker 1: A federal appeals court yesterday backed Minnesota's rules governing the

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Speaker 1: civil commitment of convicted sex offenders who have served the

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Speaker 1: criminal sentences. The program is designed to keep sexual predators

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Speaker 1: off the street, provide treatment, and give them a path

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Speaker 1: to release once they are no longer a danger, but

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Speaker 1: more than twenty years, only one person has been fully released,

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Speaker 1: and that didn't occur until August of this year. A

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Speaker 1: federal trial judge said the program violates the Constitution, and

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Speaker 1: he ordered changes to make it easier to win release.

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Speaker 1: But yesterday, the Eighth u s Circuit throughout that order,

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Speaker 1: saying the rules are quote rationally related to the state's

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Speaker 1: legitimate interest of protecting its citizens from sexually dangerous persons unquote.

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Speaker 1: The three nothing rulings at a high bar for challengers

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Speaker 1: to sexual predator commitment laws, saying state officials are entitled

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Speaker 1: to broad deference. With us to talk about the ruling

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Speaker 1: are two people who challenged the program. Dan Gustufson, he's

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Speaker 1: the lead attorney for the people who are being detained

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Speaker 1: under the law, and Eric Janice, a professor at Mitchell

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Speaker 1: Hamlin's School of Law. He filed a brief opposing the

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Speaker 1: program on behalf of the A C l U of Minnesota.

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Speaker 1: Welcome to you both. Uh, Eric, let me start with you.

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Speaker 1: Can you just put the Minnesota law in some context

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Speaker 1: for us. How does what the state does after a

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Speaker 1: sentence has has run its course? How does that compare

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Speaker 1: to what happens elsewhere around the country. Sure, yeah, Um.

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Speaker 1: So these are known as sexually violent predator laws. Uh.

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Speaker 1: Number of them were past beginning in the ninety nineties.

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Speaker 1: They're quite distinct in that they allow people to be

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Speaker 1: locked up for indefinite periods of time after they've served

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Speaker 1: their criminal sentence. UM. Currently they're about twenty states UM

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Speaker 1: and the federal government to have laws like this. The

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Speaker 1: Minnesota program UM is similar on the books to these

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Speaker 1: other laws, but in operation it's always it's been quite

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Speaker 1: an outlier. It's got the highest per capita UH number

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Speaker 1: where Minnesota has a has per cappa a number of

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Speaker 1: people civilly committed. As you mentioned, Uh, almost no one

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Speaker 1: has gotten out. So um. Then in a number of ways,

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Speaker 1: Minnesota is is an outlier. Dan explain the Eighth Circuits

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Speaker 1: decision finding that the program is constitutional. Well, thank you

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Speaker 1: for having me on the program. First of all, Uh,

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Speaker 1: Uh there's really two parts to the A Circuit's decision

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Speaker 1: um that that form the basis of it. First of all,

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Speaker 1: they set a very low standard for the state in

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Speaker 1: terms of enacting this statute. Um. Normally, statutes that involve

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Speaker 1: the deprivation of individual liberty would be subject to a

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Speaker 1: strict scrutiny standard, which the District Court did, but the

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Speaker 1: A Circuit said, no, the state only has to show

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Speaker 1: a rational basis for enacting these laws. And so that's

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Speaker 1: the lowest standard of protection with respect of the due

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Speaker 1: process clause, much the same that they applied to things

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Speaker 1: like laws that regulate zoning and laws that regulate taxation,

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Speaker 1: things like that. So they set a very low bar

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Speaker 1: for the state. And then on the other side of

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Speaker 1: the equation, they set a very high standard for people

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Speaker 1: who challenge the due process protection, saying that you have

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Speaker 1: to show that the UH statute is operated in a

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Speaker 1: way that demonstrates malice or UH sadistic intent on behalf

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Speaker 1: of the state, and that it's so egregious and so

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Speaker 1: outrageous that it shocks the conscience. And that's a standard

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Speaker 1: that you know is almost never you can almost never

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Speaker 1: meet that standard. And so they set a very low

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Speaker 1: bar for the state, very high bar for the people

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Speaker 1: who are committed. And it's always been our view in

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Speaker 1: the District Court's decision was that it should be the

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Speaker 1: other way around. When you take people's liberty away uh involuntarily,

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Speaker 1: that you should set a very high bar for the

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Speaker 1: state because the state is acting under its governmental authority,

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Speaker 1: and that you should set a very low bar for

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Speaker 1: the people who challenge it. And so that's the basis

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Speaker 1: for the a circus this Asian yesterday. Eric. Does this

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Speaker 1: decision effectively end the challenge to the program? The court

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Speaker 1: did remand it back to the district court for consideration

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Speaker 1: of other claims. But is there any any hope there

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Speaker 1: for winning at least something out of this case. Well,

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Speaker 1: I I'm you know, leave it to Dan to talk

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Speaker 1: about what what the remaining claims might be. But but

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Speaker 1: what I can say is that the Circuit I think

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Speaker 1: sent the clarion signal that um it is going to

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Speaker 1: take a hands off approach to these kinds of programs,

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Speaker 1: despite the fact, as Dan mentioned, that they are depriving

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Speaker 1: in Minnesota's more than seven people of their liberty and

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Speaker 1: for all intents and purposes, it's a lifetime commitment. So, um,

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Speaker 1: if you read this case, it is a very clear

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Speaker 1: signal for federal courts to keep their hands off and

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Speaker 1: not provide any accountability. Um. I don't know what the

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Speaker 1: plane of plans are about taking review or an on

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Speaker 1: bank on bank review, but I assume that there might

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Speaker 1: be some thoughts about that. So, Dan, that is the

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Speaker 1: next question. Then are you going to think it seek

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Speaker 1: an on bank review or perhaps a Supreme Court review? Well,

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Speaker 1: you know, it's certainly two of the options that we're considering.

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Speaker 1: You know, my inclination at this point is to go

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Speaker 1: directly to the Supreme Court. The A Circuit is you know,

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Speaker 1: usually is not inclined to take an embank review of

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Speaker 1: a case in which there's you know, a three opel

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Speaker 1: three to zero panel decision. Um. So, so I think

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Speaker 1: we're we're going to pursue an appeal in that regard.

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Speaker 1: There's also, you know, at the district court the remains

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Speaker 1: claims under the Minnesota Constitution, which is uh, you know,

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Speaker 1: generally interprets its due process clause uh, similarly to that

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Speaker 1: at the federal courts. But here we have a situation

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Speaker 1: where we may be able to get some uh some

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Speaker 1: additional relief nder the Minnesota Constitution, where the federal courts

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Speaker 1: have taken, as Professor Jenna said, taken this hands off

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Speaker 1: approach to this eric. The Circuit essentially said in part

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Speaker 1: of its ruling that that your side is trying to

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Speaker 1: create new rights, or at least that's my read of it.

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Speaker 1: And among other things, they said, the Supreme Court has

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Speaker 1: never declared that persons who pose a significant danger to

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Speaker 1: themselves or others possess a fundamental liberty interest in freedom

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Speaker 1: from physical restraints. What's the answer to that position? You

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Speaker 1: know that there's you know to quite honestly, I think

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Speaker 1: the courts analysis is very confused. Um. You know, the

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Speaker 1: Supreme Court has for decades now, the U. Supreme Court

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Speaker 1: for decades has examined civil equipment laws, um. And they've

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Speaker 1: examined them from a substantive due process perspective. UM. And

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Speaker 1: you know, the Court has rarely talked about it in

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Speaker 1: terms The U. S Court has really talked about it

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Speaker 1: in terms of exactly what standard of review it's applying,

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Speaker 1: whether it's strict routine, a rational basis. I mean, so

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Speaker 1: the A Circuit is correct in a sense in that way,

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Speaker 1: but the Court has UM made some very clear pronouncements

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Speaker 1: about what kinds of civil commitment laws are acceptable and

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Speaker 1: what kinds aren't. UM. And so states don't have unlimited

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Speaker 1: discretion or even reasonable discretion in designing civil commitment laws. UM.

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Speaker 1: They need to follow certain guidelines. And I think the

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Speaker 1: key UM, you know, some of the key guidelines are

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Speaker 1: that if people are civilly committed, if it's a legitimate

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Speaker 1: civil commitment program, they need to be released as soon

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Speaker 1: as their risk level diminishes. And Eric, Eric, I'm gonna

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Speaker 1: ask you to hold that thought. We can we can

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Speaker 1: pick it up in a moment. We're listening to Bloomberg Law.

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Speaker 1: We're talking with law professor Eric Janice and lawyer Dan

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Speaker 1: Gustufson about yesterday's appeals court ruling upholding or or effectively

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Speaker 1: upholding UH Minnesota's system for civil commitment of convicted sexual predators. UM. Damn.

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Speaker 1: I think some people's instinctive reaction to this issue would

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Speaker 1: be these are uh. You know, people have been convicted

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Speaker 1: of rape, child molestations, some really awful crimes, and we

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Speaker 1: should air on the side of keeping them away from

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Speaker 1: you know, our children are our sisters. UH, And that

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Speaker 1: that it's Okay, if if uh we do air on

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Speaker 1: the side of keeping them uh can confined, what do

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Speaker 1: you say to that, Well, I think that's a that's

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Speaker 1: a common response to people with respect to these kinds

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Speaker 1: of lawsuits, and and of course, you know, nobody, nobody

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Speaker 1: defends the conduct that underlies their convictions from these plaintiffs.

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Speaker 1: The issue really is is whether the state can involuntarily

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Speaker 1: commit people uh to prevent what they might do in

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Speaker 1: the future. And because that's because that is so difficult

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Speaker 1: to predict, and it sort of calls up the current

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Speaker 1: problem that we hear in the news today about terrorist activity.

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Speaker 1: You know, this program is much like a program that

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Speaker 1: might be designed to uh incarceerate or commit terrorists who

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Speaker 1: may commit future acts. You know, it may be a

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Speaker 1: legitimate exercise of state power to commit these people, but

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Speaker 1: because it's such a difficult thing to predict, we want

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Speaker 1: to be very careful that we don't that we don't

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Speaker 1: hold them one day long or than necessary to protect

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Speaker 1: the public. So it's really a question about it's not

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Speaker 1: so much a question about whether the state has the

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Speaker 1: authority to do this or whether this is good public policy.

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Speaker 1: It's a question of whether we should have a real

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Speaker 1: careful checks and balances on the state's power to avoid

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Speaker 1: them using this for political purposes or for purposes that

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Speaker 1: are outside the bounds of what the law would would

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Speaker 1: would allow. Eric, will you explain the procedure. In other words,

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Speaker 1: once they are convicted, are they then g in a hearing,

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Speaker 1: a civil commitment hearing, and then periodic hearings. Well, yes, no,

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Speaker 1: in at least in Minnesota, UM, a person who's convicted

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Speaker 1: serves their sentence, and then as they're approaching the end

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Speaker 1: of the prison sentence, there's a review process, and if

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Speaker 1: the state determines in their opinion that the person poses

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Speaker 1: a risk, then they referred to a civil commitment process

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Speaker 1: where there's a separate petition and a hearing with lawyers

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Speaker 1: and so forth. So there there's certainly is due process

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Speaker 1: on on that end, there's procedural due process. UM. As

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Speaker 1: far as getting out in Minnesota, it's much dice here.

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Speaker 1: And that was one of the concerns that the district

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Speaker 1: court judge had, and that is that the state was

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Speaker 1: not engaged in any kind of regular process of risk

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Speaker 1: assessment or in providing regular hearings to these people to

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Speaker 1: make sure that it was only holding people who's risk

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Speaker 1: justified it. And interestingly, the Court of Appeals didn't take

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Speaker 1: issue with that finding. Basically though, they said that they

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Speaker 1: didn't really care whether people were being held beyond the

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Speaker 1: time when they should be held. Dan, what have you

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Speaker 1: heard from your clients after this ruling? What's their reaction? Well,

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Speaker 1: of course they're they're very disappointed, But I think the

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Speaker 1: more important reaction from them is a real sense of hopelessness.

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Speaker 1: You know, one of the one of the pervasive aspects

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Speaker 1: of testimony from my clients at the trial was was

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Speaker 1: that there's this because this commitment is indefinite, there's a

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Speaker 1: sense that what why bob they're going through the treatment,

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Speaker 1: or why bother doing anything? Because nobody ever gets out

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Speaker 1: And Judge Frank's Order of of two thousand and fifteen

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Speaker 1: finding a program on constitutional changed all that, and it

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Speaker 1: gave a sense of hope two people, and it gave

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Speaker 1: a sense of reason for people to engage in the

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Speaker 1: treatment that would help alleviate their mental illness with this

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Speaker 1: for effect. And now this order has sort of crushed that.

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Speaker 1: So there's a real sense of why bother, why do anything?

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Speaker 1: And uh and why not? Why not just withdraw and

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Speaker 1: refused to participate in all the activities. So that's been

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Speaker 1: the reaction. I want to thank our guests, Eric Jannis,

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Speaker 1: a law professor at Mitchell Hamlin School of Law, and

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Speaker 1: Dan Gustison, the lead attorney representing the people who are

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Speaker 1: being UH confined under the Minnesota law that was the

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Speaker 1: subject of the Eighth Circuit ruling June. I have a

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Speaker 1: feeling that we are going to see this at the

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Speaker 1: Supreme Court. We obviously still have a shorthanded UH court here. UM.

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Speaker 1: I'll be interested to see whether the court is willing

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Speaker 1: to take this issue up. It would be uh certainly

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Speaker 1: seemed like something that deserves to be heard by the

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Speaker 1: Supreme Court. We will keep an eye on that.