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The Minnesota Supreme Court chamber in the Capitol in St. Paul. (File photo: Kevin Featherly)

Justices grant habeas corpus to sex o ender

 By: Kevin Featherly  September 14, 2019

The Minnesota Supreme Court has granted a writ of habeas corpus to a Level III sex
offender held in custody two years beyond his scheduled release date—simply because he
could find no place to live in a county that would accept him.

The ruling forces the department to abide by a 2017 District Court decision, which ordered
the DOC to either supervise Antwone Ford’s case itself or alter his terms of conditional
release.

The ruling has major implications, said Amy Lawler, Ford’s assistant state public defender,
who worked the case for three years.

“It’s going to cause the DOC to change its release practices,” she said. “And that’s a big deal
for a lot of our clients.”

According to the Supreme Court, the DOC acted as “mere scriveners, simply documenting
release-planning efforts” while allowing counties authority to opt out of supervising Ford’s
release.

The DOC violated both case law—specifically, the state Court of Appeals’ 2008 Marlowe v.
Fabian decision—and DOC’s own polices, the Supreme Court ruled.

According to those policies, the “proposed residence” is an offender’s presumptive release

jurisdiction, unless specific risks are identified to that offender’s victims or to others in the
offender’s “victim pool.”

The DOC can order counties to accept offenders—and even withhold their funding if they
refuse to supervise their release. But it does not exercise that authority, former 10th Judicial
District Court Judge John R. McBride noted in the 2017 order now being enforced by the
Supreme Court.

Wednesday’s Supreme Court decision reverses a June 2018 state Court of Appeals opinion.
That court had ruled Ford’s habeas corpus petition moot because he was already out of
custody and attending a residential treatment program in Minneapolis.

But the unanimous Supreme Court, in a ruling written by Justice G. Barry Anderson,
emphatically disagreed.

Though it is true Ford was in treatment under Hennepin County’s temporary supervision,
that status was granted only on a “courtesy” basis, Anderson wrote. It was effective only
while Ford temporarily lived in Minneapolis’ Alpha House residential treatment facility.

However, to fully complete his multi-stage, 13- to 18-month therapy, Ford eventually would
have to move out into the community, the ruling said. At that point, neither Hennepin
County nor the DOC would likely supervise his release.

Based on his past experience, Anderson wrote, Ford’s release would almost certainly be yet
again revoked.

“In this case,” it states, “the evidence establishes that Ford’s return to prison is imminent
and almost inevitable, even if it has not yet occurred. Ford’s claims are functionally
justiciable and should be decided now.”

In fact, Wednesday’s opinion simply supplies the legal rationale for a decision that already
was made, four months ago.

On May 10, Chief Justice Lorie Gildea issued an order reversing the Court of Appeals and
requiring DOC to directly supervise Ford’s case when he completed the residential phase of
his treatment and was moved out into the community.

That order allowed Ford to continue his treatment to completion—something he almost

certainly could not have done otherwise, his attorney said. He is now close to finishing the
program, Lawler said.

“He’s doing great and he’s living in the community. I’m so proud of him,” Lawler said. “I got
really lucky with this client, because I think a lot of people would’ve been really
discouraged.”

Ford’s entire sentence—including his conditional-release term—finally ended on July 19. The
May order likely spared him from having to finish his conditional-release term inside a state
prison, without having completed therapy.

Background
Ford was convicted of third-degree sexual assault in 2008. Lawler says his crime was having
sex with a 15-year-old girlfriend after he turned 18.

He received a stayed 36-month prison sentence and was given probation. But in 2013, his
sentence was executed for probation violations.

Ford was scheduled for conditional release in 2015, but he could not secure an approved
address, a requirement for Level III sex offenders. He was instead transferred to the Blue
Earth County jail.

About two weeks later, the DOC’s Hearings and Release Unit heard what it considered to be
Ford’s latest violation—failure to find appropriate housing. An officer there revoked his
release for 90 days.

The same thing would happen three more times over the next two years. Yet over that
period, Ford found housing in places like Mankato, Moorhead and St. Paul. All were rejected,
for one reason or another, and he remained in custody.
Lawler said those review hearings—authority for which is nowhere granted to the DOC in
state statute—were not limited to Ford’s case.

In fact, she said, they became prevalent during the Dayton administration, when Tom Roy
was DOC commissioner. Since 2013, she said, she has personally attended hundreds of
them.

Frequently, she said, the only thing being reviewed was the reason an offender had nowhere
to go outside of the county of commitment—the county where the inmate’s offense took
place. DOC tended to treat counties of commitment as the default location of an inmate’s
probations, according McBride’s 2017 ruling.

At review hearings, Lawler said, sometimes inmates would have places to live, but the case
worker was unable to assign an agent because the proposed county had refused to accept
the case.

Other times, an offender would have an agent assigned, but there was no available housing
in the county that the DOC would approve, she said.

As a result, the department routinely opted to keep inmates in custody, she said. Some were
not even on intensive supervised release like Ford, she said.

“It was just incredibly frustrating,” she said. “It was hearing after hearing after hearing of
just these desperate people—who often did have places to go. But the DOC would not let
them out.”

Further, DOC acted as if it was powerless to do anything about it, she said.

“They said they were not [in review hearings] to actually assign conditions of release or
assign agents or approve release plans,” she said. “They were just there to document.”

The Supreme Court agreed that was the case.

“Despite Marlowe’s clear holding,” Anderson writes, citing case law, “the District Court noted
that the department ‘never modifies offenders’ conditions of release,’ acting instead ‘as mere
scriveners, simply documenting release-planning efforts.’”

In fact, DOC has routinely declined to order placement in Community Corrections Act
counties—counties that get paid by the state to provide offender supervision—if the county
objects.

Ford, for example, found a landlord who would rent to him in Ramsey County. But the
county declined to take him. He had no “historical ties” there, county officials told the
department, and it already has too many Level III offenders to deal with.

Marlowe violation
Allowing counties that much discretion is a direct violation of Marlowe, the Supreme Court
ruled.

That earlier ruling said the department “has an obligation to fashion conditions of release
that are workable and not impossible to satisfy.”

It also says that, by statute, “the DOC must release offenders after they serve their term of
imprisonment and must supervise offenders during their period of supervised release.”

While DOC is not obliged to find an offender a place to live, that court ruled, it must
“restructure the conditions of … supervised release when no suitable residence exists in his
county of commit, but suitable residences are available in a neighboring county.”
 In Ford’s case—and according to Lawler, in many others—that was not done. After the
Supreme Court’s ruling, she said, it now will have to be.

DOC Commissioner Paul Schnell was scheduled to speak with Minnesota Lawyer on
Wednesday afternoon, but the interview did not happen. A follow-up request to a
spokeswoman received no reply.

ABOUT KEVIN FEATHERLY

Kevin Featherly, who joined BridgeTower Media in mid-2016, is a journalist and former
freelance writer who has covered politics, law, business, technology and popular
culture for publications and websites in the Twin Cities and nationally since the mid-
1990s.

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