The Counter-Balancing Force

Dan Gustafson doesn’t shy away from representing society’s biggest pariahs

Published in 2016 Minnesota Super Lawyers — August 2016

Photo by: Richard Fleischman

In late 2003, 22-year-old University of North Dakota student Dru Sjodin was abducted from a Grand Forks mall parking lot. After a search that lasted five months, Sjodin’s body was found near Crookston, not far from the home of Alfonso Rodriguez Jr., a Level III sex offender who had recently been released after completing a 23-year prison term. Rodriguez was ultimately convicted in federal court of Sjodin’s abduction and stabbing death, and now sits on death row at the U.S. Penitentiary at Terre Haute, Indiana. 

The same year the Sjodin case made headlines, UND alumnus Dan Gustafson was in the process of co-founding anti-trust and class action firm Gustafson Gluek in downtown Minneapolis with his partner, Karla Gluek. Little did he know that the case would eventually figure prominently in his professional life.

In 2006, “Dru’s Law” passed, a bill that dedicated the National Sex Offender Public Registry in her name.
In Minnesota, Gustafson says lawmakers adopted a “lock-‘em-up-and-throw-away-the-key” mentality for
hundreds in the Minnesota Sex Offender Program, a high-security treatment protocol for criminals
deemed dangerous to the public. 

“The Dru Sjodin case was horrible, and as a result of that there was a reaction to that: That’s never going
to happen again in Minnesota
,” says Gustafson, 58, sitting in his downtown Minneapolis office surrounded
by photos of his family, including his three grown children and wife of 27 years. “So they went out and
looked at every Level III sex offender who was not committed, who were out living in the community in
various halfway houses, and they committed like 200 people that year. It just changed the political climate
in Minnesota. The political leadership said, ‘We’re never going to let somebody out who could be
committed.’ You can see it now in the legislature. Whenever there’s legislation that [seeks] to make
changes with the [MSOP] program, people just say, ‘Why would I support that?’”

Today, Gustafson leads a team of attorneys at Gustafson Gluek in representing a class of roughly 720 individuals placed in MSOP facilities in St. Peter and Moose Lake who claim that being committed to a treatment program with little chance of release amounts to a violation of constitutional rights. The lawsuit challenges the protocols involved in the treatment program, which the offenders are often committed to after serving criminal sentences. Those protocols make it “easy to get in and it’s impossible to get out,” says Gustafson. 

“The way the system is set up … if you were living in, say, Willmar or Little Falls, when you get out of prison your commitment hearing goes back to that county where you were originally prosecuted. And we have an election system in our state for judges, so you can imagine, in a small town, if there’s one or two elected judges and they have the [power to determine] whether you should commit this person, it’s sort of skewing in favor of commitment from a public standpoint.

“Once you get in, they won’t support you for release until you have finished the treatment program, and there’s all sorts of impediments to finishing the treatment program,” he says, citing disciplinary violations such as fighting or sharing food, both of which keep individuals from advancing through the program. “The objective of the program should be to move people through so they can be processed back into the community and begin to be reintegrated, but what’s happening is the default is to not move people through treatment. … Even if they do petition to get out, the attorney general can object, and the county attorney from where you came can object, and any victim can object, and it becomes very politicized and it becomes very difficult to get out.”

Gustafson’s team took on the case in 2011 at the request of the Pro Se Project, which gives federal judges the means to match up volunteer lawyers with clients who have been attempting to represent themselves in court. Progress, as you might imagine, has been slow, but Gustafson remains optimistic. “Since the lawsuit started, people have been moved through treatment at a better rate, more people are getting close to finishing treatment and being subject to a provisional release, so the lawsuit has absolutely caused the MSOP to do some of the things we seek.”

Gustafson and his team have studied other states’ sex offender programs and found that, of the 20 states that civilly commit some sex offenders to treatment programs after they’ve served their prison time, Minnesota commits the highest rate of sex offenders per capita. “It also releases the fewest,” he says, “has never released anyone, and provisionally discharged only three, with a fourth now in the works.

“Other states have set up systems where there are parole boards or independent entities that make the decisions, shielded pretty much from public opinion,” says Gustafson. “Listen, I get it why people are worried about a Level III sex offender who has a long history of violating people. I get why they don’t want to let ’em out, but we have over 700 people, more per capita than any place in the country, and if you look at Wisconsin, they’ve either provisionally discharged or outright released over 200 people. Right next door, a state pretty similar to ours, and yet they manage to get people released.”

The work is tedious and often thankless—he’s representing one of the most despised groups in the country, after all—but Gustafson isn’t alone in the fight. He’s shared the long hours with fellow attorneys Gluek, Dave Goodwin, Raina Borrelli, Eric Taubel and Lucy Massopust, plus paralegal Sarah Moen. 

“I’ve practiced law with Dan Gustafson since 1998,” says Dan Hedlund. “He is very generous with his time in mentoring younger lawyers. He listens to their views and ideas and takes them into consideration. Maybe most importantly, he is never afraid to express his opinion when working with other groups of lawyers—no matter how unconventional that opinion or idea may seem in the first instance. Although his views and ideas do not always carry the day, more often than not, co-counsel will be swayed by Dan’s position and be wondering, ‘Why didn’t I think of that?’”

 

Gustafson’s first job as an attorney was in the late 1980s at what is now Lockridge Grindal Nauen in Minneapolis. He spent much of his early years working on antitrust class-action lawsuits against such companies as Medtronic and Hormel Foods, and continued that work when he went on to become a founding partner at Heins Mills & Olson.

“Dan is a smart, streetwise and skilled attorney who has no fear standing up to those in power,” says Charlie Nauen of Lockridge Grindal Nauen. “He has spent his career representing small businesses, injured individuals and underdogs. He is renowned nationally as the lawyer to bring in to try the complicated class action case.”

Outside the office, Gustafson makes furniture as an amateur woodworker, keeps bees at his family’s hobby farm in Nowthen, and admits to being a handy guy. “I know how to do electrical; I know how to do plumbing; I know how to do tiling,” he says.

That same breadth of knowledge in the legal world is what lets his 15-lawyer shop compete against the nation’s biggest firms. So it’s no surprise that he likes representing the underdog.

“When I interview people at my firm,” Gustafson says, “I try to figure out if they share that view, because I think if you do client’s work, you have to believe that at times there are government excesses and at times corporate America doesn’t look out for the interests of people—it looks out for its own interest. And we’re a counter-balancing force for that.”

Even though his pro bono clients might be society’s biggest pariahs, Gustafson says he’s been pleasantly surprised by support within the legal community for his role in the MSOP case.

“I get a lot of comments from lawyers who say, ‘My firm would never let me do this,’ because of the adverse public opinion,” he says. “The support of the legal community has been really positive, but I’ve had a couple of emails from people who either were victims or knew a victim, who said, ‘What about the victims when these people get out?’

“And, of course, our lawsuit is not about people getting out. It’s about people getting a fair process. The people who are negative initially, when they hear about how the system operates, generally say things like, ‘Well, that doesn’t seem right.’

“Regardless of what someone has done, they’re still entitled to the due process that the Constitution requires, and that is really the foundation of our system,” he says. “We don’t ignore the rule of law.”

 


 

An Eye on New York’s Model

Gustafson and his team have traveled the United States looking for better ways to guarantee offenders’ constitutional rights.

“The best model that I know of is New York,” he says. “New York has a centralized and insulated decision-making process, [free] from political influence as much as possible, and they have a very good system for screening people who should be committed. They divert a lot of their people initially committed to community supervision where they put someone on a very strict community-based placement and they continue to get treatment. And with the technology of today, with GPS monitoring and things like that, you can really much more easily supervise someone. It’s not perfect, but New York’s a really good system.”

Photo by: Richard Fleischman

Photo by: Richard Fleischman

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