Expert panel and state can’t agree whether sex offender remains a risk. Federal judge orders an expedited review.
Once again, one man has become the center of a legal firestorm over the constitutionality of Minnesota’s sex offender treatment program.
On Wednesday, a federal judge ordered the state to conduct an accelerated review of Eric Terhaar, 24, also known as “E.T.,” who was committed to state custody as a sex offender in 2009 — even though his offenses occurred before he turned 15 and he has never been convicted of a crime as an adult.
A panel of court-appointed experts has recommended that Terhaar be unconditionally released from the Minnesota Sex Offender Program (MSOP). But top officials at the state Department of Human Services, which oversees the program, say they oppose Terhaar’s release — prompting U.S. Judge Donovan Frank to insist that the agency accelerate the case while expressing his own puzzlement at the conflicting opinions among state experts.
Terhaar’s case has become the latest flash point in a prolonged debate over whether Minnesota is violating the Constitution by locking away sex offenders indefinitely — in many cases, after they have completed their prison sentences. The outcome of his review could determine the future of many of the roughly 690 people confined at MSOP treatment centers in Moose Lake and St. Peter, including 52 men with no criminal histories.
In a courtroom packed with state officials, attorneys for the Human Services Department argued for Terhaar’s continued confinement while trying to explain the contradictory opinions by experts on whether he poses a risk to the public.
In a confusing twist, two MSOP doctors this month wrote a report opposing Terhaar’s transfer to a less-secure facility, while a panel of four court-appointed experts said he should be released immediately.
Noting this contradiction, Frank forced the issue by calling for a two-day evidentiary hearing in mid-July on Terhaar’s case, as well as the case of a woman confined at MSOP. Frank indicated that he could make a ruling on their cases at the hearing or soon afterward.
Attorneys for Terhaar applauded the expedited process. It brings Terhaar a significant step closer to release, which would make him just the second person conditionally discharged from MSOP in its 19-year history.
“Every single day that [Terhaar] is kept unconstitutionally is a day that he’ll never get back,” said Dan Gustafson, an attorney for Terhaar and a class of sex offenders suing the state over their confinement.
Wednesday’s hearing was the first time that attorneys representing the state have publicly made their case against Terhaar’s release. Deputy Attorney General Nathan Brennaman called for a “measured approach” to integrating Terhaar back in the community, noting that he has been institutionalized since age 10. Terhaar also had eight violent assaults while at MSOP, including three assaults within the past year, Brennaman said.
In an affidavit filed with the court, Nancy Johnston, executive director of MSOP, argued that Terhaar had “not yet mastered the independent living skills that would be required of him outside of a structured setting.” Johnston added that while Terhaar had shown progress in treatment, suddenly removing him from supervision could affect his treatment and the public’s safety.
Her opinion differed markedly from that of a panel of court-appointed experts, who argued that there is “little evidence to suggest that [Terhaar] is a dangerous sexual offender who poses a risk to public safety.” According to the panel, Terhaar was committed to MSOP based on behavior that occurred between ages 10 and 14, and he could have been influenced by his own history of sexual victimization.
The panel also noted that most juveniles who engage in sexual abuse do not offend as adults, in part because juveniles are more amenable to change and are often driven by different motives. The panel noted that just 4.3 percent of juveniles who engage in sexually abusive behavior are arrested on sex-offense charges as adults.
In light of the panel’s recommendation, Frank had ordered department officials to explain why Terhaar should be not be released — effectively putting the burden on the state to prove his confinement is constitutional.
The indefinite confinement of young men like Terhaar with convicted serial rapists and child molesters has been controversial. Last year, a task force that reviewed Minnesota’s civil commitment process concluded, “No person should be civilly committed based solely on behavior that occurred while that person was a juvenile.”
Dr. Michael Farnsworth, a forensic psychiatrist who helped design MSOP, argued that the state has to create alternative treatment options for juveniles.
“We’re treating juveniles wrongly by putting them in confinement with adult males with decades of criminal sexual conduct,” Farnsworth said. “You wouldn’t put someone with asthma on a cancer ward.”
At times Wednesday, Frank asked how officials could reach contradictory conclusions about the same offender.
“The doctors are free to come to different positions,” Brennaman said.
Chris Serres • 612-673-4308