A case began in December 2011 as a pro se proceeding by patients in the Minnesota Sex Offender Program disputing the conditions including room searches, restrictive telephone and mail policies and bad food, among other things — that’s how the defendant state of Minnesota characterized it, anyway.

When the petitioners got an attorney, it got re-characterized as a matter of substantive due process.

It’s now pending at the United States Supreme Court, where the justices will consider the patients’ petition for certiorari. The briefs are all in now — one from the state, two from petitioners and four from amicus curiae supporting the petitioners. (See sidebar on amicus briefs.)

The constitutional issue presented to the Supreme Court is the standard of review that should apply to substantive due process claims brought by the patients. Strict scrutiny, the highest standard, as employed by Judge Donovan Frank? Or simply a reasonable relation standard, as used by the 8th U.S. Circuit Court of Appeals? And must one’s conscience be shocked by the actions of the respondents, and if so, at what stage of the review?

As the petitioners’ attorney, Dan Gustafson, sees it, the nub of the problem is that once a person is committed, he or she is labeled dangerous and loses the fundamental right to liberty effectively forever under the state system. The state has failed to enact a procedure to make sure that people are able to be released, Gustafson said.

The state does have a statutory reduction in custody scheme in place, but it shifts the burden of proof to the patient and it has never resulted in a release until this lawsuit was filed. “We’ve demonstrated that it hasn’t worked for the last 25 years,” Gustafson said.

The case is Karsjens, et al. v. Emily Johnson Pipe, et al. Solicitor General Alan Gilbert could not be reached for comment.

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