The Minnesota Court of Appeals on Monday upheld a decision to release a prolific child molester from the Minnesota Sex Offender Program (MSOP) over the objections of the state Department of Human Services.
Jerry Gene Kerkhoff, 46, was originally prosecuted in Douglas County and sexually abused 41 children during his adolescence and as a young adult. He has been in the MSOP for nearly 20 years.
The appeals court approved Kerkhoff's "provisional discharge," which would require him to be on active GPS monitoring; it would monitor his real-time movements and alert supervising authorities if he is at an unauthorized location. He would be housed in an approved residence and would not be allowed to leave without an MSOP staff member accompanying him for the first 30 days at a minimum. He would be barred from attending events that are attractions for minors.
Since 2015, Kerkhoff was enrolled in Community Preparations Services (CPS), a less secure treatment program. DHS officials argued that rather than a provisional discharge, he needed the "constant support and accountability provided by staff and peers" in that program in order to successfully adjust to the community while protecting the public, the appeals court said.
But the Commitment Appeals Panel — a three-judge panel appointed by the Minnesota Supreme Court, concluded Monday that continued placement in CPS was no longer necessary. The Court of Appeals ruled that it would not substitute itself for the commitment appeals panel.
DHS officials have 30 days to ask the Supreme Court to review the appellate decision. Acting DHS Commissioner Pam Wheelock "will take time to carefully consider the case before deciding the next step," a department spokesperson said in a statement. "The lower court and now the Court of Appeals have approved provisional discharge for this client despite no support from experts."
The Supreme Court would have the option of reviewing or declining the case.
According to the state appeals court opinion, Kerkhoff committed his first sexual offense when he was 12. When he was 13, he sexually abused a 6-year-old boy and a 3-year-old girl while babysitting. He was found guilty of second-degree criminal sexual conduct and placed in a juvenile correctional facility.
In 1994, at the age of 21, he was convicted of first-degree criminal sexual conduct for sexually abusing a 7-year-old girl periodically over the course of a year. Also in 1994, he was convicted of second-degree criminal sexual conduct for sexually abusing his 7-year-old stepson multiple times over the course of two years.
He was sentenced to nearly seven years in prison for his offenses against the two children and in 1999, he was indeterminately committed as a sexually dangerous person and placed in the MSOP.
Over the last three years he attended multiple hearings seeking provisional or full discharge.
The Court of Appeals pointed out that Kerkhoff successfully completed specialized treatment programs, participated in after-care programs and showed no indications of deception. He also did " a great job mentoring, providing guidance for people in other stages, using his own personal experiences and knowledge and helping to guide them in their treatment journey," according to staff comments.
Eric Janus, former president and dean of William Mitchell of College of Law and an MSOP expert, said the Court of Appeals decision "is an example of the system working as it ought to."
"There is a very intricate process for adjudicating when somebody can be managed appropriately in the community, and that process includes being reviewed by a specialized three-judge court. They become experts in understanding this," Janus said. "The order makes it clear that there are multiple levels of supervision that will be in place for this individual."
Janus called the DHS objections "par for the course."
"We have a history of 25 years of the DHS objecting and that's in our American system. It's called due process," he said. "The government doesn't have the final say, they are subject to the rule of law."
In recent years, under federal court pressure, state panels have released more sex offenders into the community. There are 731 sex offenders currently incarcerated at state facilities in Moose Lake and St. Peter. Six people have been granted a full discharge by the court and are no longer under the jurisdiction of MSOP; 25 have been granted provisional discharge by the court.
Of those, 22 are living in communities under the supervision of MSOP. Three are awaiting community placement.