Minnesota sex offenders: Are they really the 'worst of the worst'?

Eric Eischens has never been convicted of a crime, but he could spend the rest of his life behind razor wire.

Eischens, who is 19 and developmentally disabled, has confessed to sexually molesting at least six boys before he turned 14. On Nov. 7, a judge committed him to an indefinite term in Minnesota's sex-offender treatment program.

Just months earlier, officials approved the provisional release of a violent serial rapist, Thomas Duvall, 58, who has admitted to attacking at least 60 women, including a 17-year-old girl he raped while hitting her with a hammer.

The divergent cases demonstrate the often arbitrary manner in which Minnesota treats rapists, pedophiles and other sex offenders deemed too dangerous to live in the community — and why state officials are now under pressure to overhaul the Minnesota Sex Offender Program (MSOP).

Though often described as the "worst of the worst," sex offenders in the MSOP's prisonlike treatment centers in Moose Lake and St. Peter are not all more violent or more likely to reoffend than those in the state prison system.

Some 52 of the 698 offenders currently in the program have never been convicted of an adult crime, according to state records. Some, like Eischens, are there based solely on acts they committed as juveniles. Many are guilty of less-serious crimes than the 326 "Level Three" sex offenders who have been released from prison and who now live in communities across the state.

"The system is broken, and it's broken on many levels," said Dr. Michael Farnsworth, a forensic psychiatrist from Nisswa, Minn., who designed the original MSOP in 1992. "We're locking away people indefinitely without any consistent standards."

On Monday, a task force appointed by state Human Services Commissioner Lucinda Jesson will release a series of recommendations that include the creation of a statewide panel to review all petitions for civil commitment to the MSOP and a biennial review of cases to find offenders who might be released under supervision without posing a public risk.

If adopted, the recommendations would counterbalance the authority of local judges to order sex offenders into indefinite confinement — a de facto life sentence for many offenders. Only one offender has ever been provisionally discharged in the MSOP's 19-year history.

The task force's final report also contains strong language opposing the commitment of offenders based solely on juvenile acts.

"It is utterly unconscionable that we are locking away young people with violent sex offenders who are older, bigger, stronger and more sophisticated," said Fred Friedman of Duluth, chief public defender for northeastern Minnesota and a member of the task force. "The practice has to stop."

The proposed discharge of Duvall, together with a federal lawsuit challenging the constitutionality of indefinite confinement, have set off a contentious debate over who gets discharged from the MSOP.

Almost since the program's inception in 1994, some observers have worried that it casts too wide a net, resulting in large costs to taxpayers with little measurable benefit.

The MSOP costs about $80 million a year — or $120,000 annually for each detained sex offender. That's roughly three times the cost of confining offenders in prison. After a decade of explosive growth in the MSOP, Minnesota now has the largest number of civilly committed sex offenders per capita in the country.

Many attorneys who represent sex offenders blame Minnesota's commitment law, which they argue is overly broad. According to state law, a person can be committed indefinitely without even being convicted of a sex crime.

A county prosecutor need only prove that a person has engaged in "a course of harmful sexual conduct" and is "highly likely" to reoffend. Violence is not actually required; "nonviolent" sex acts, such as masturbating in public or window-peeping, may be sufficient to show harmful conduct.

And because civil commitment occurs outside the criminal justice system, the rules of evidence that would apply in jury trials don't all apply. Prosecutors can submit hearsay evidence, such as statements by unnamed victims.

Eischens was just 4 or 5 years old when he began engaging in "inappropriate sexual acting out" with his younger brothers, according to a civil commitment order by a Becker County judge. He cycled in and out of nine foster care homes and treatment centers, where he fondled and had sex with at least six different boys, according to court documents.

However, much of the behavior cited in the commitment order was nonviolent. The order notes that in 2002, Eischens "snuck into his stepmother's room and watched her change clothes." Later, he was caught peeping into the vent hole of a port-a-potty. He also "sexualized behavior in play with dolls" and "drew sexually explicit pictures" that he gave to his little brother, the commitment order states.

After a treatment center for adolescents concluded that Eischens was at "high-risk for sexual reoffense" and that he needed 24-hour supervision, Becker County officials moved to have him committed in the MSOP. A doctor retained by the county to analyze Eischens described him in testimony as "elusive, sneaky and predatory."

Yet there are facts that do not neatly fit the portrait of Eischens as a sexual predator.

He was just 14 at the time of his last offense, and he has never been convicted of a crime. He suffered a traumatic brain injury as a child, which one doctor said contributed to his "ongoing anxiety and mood disorder," according to the commitment order.

"It's just morally wrong to treat this developmentally disabled young man with the same culpability as an adult serial rapist," said Ryan Magnus, a Mankato attorney who represents Eischens and is a member of the task force.

The hotly contested case of Duvall, the serial rapist, has reinforced the perception that offenders in the MSOP are Minnesota's worst. Duvall committed a string of horrific sexual assaults against teenage girls in the 1970s and '80s, including a brutal attack in which he tied up his victim with an electrical cord and beat her with a hammer while raping her, according to court documents.

The Duvall case has become highly charged politically, with some legislators calling for longer prison sentences for repeat offenders and Attorney General Lori Swanson demanding a public hearing, now scheduled for April, at which some of his victims are expected to testify.

It has even drawn the attention of other offenders confined in the program.

"The reality is that Duvall truly is the 'worst of the worst,' " said Michael Meyer, who pleaded guilty in 1990 to three counts of criminal sexual conduct involving minors and who now lives at the MSOP's Moose Lake unit. "But the majority of people here are not. In fact, most of the 'worst of the worst' are let out every day."

Research director Grant Duwe at the Minnesota Department of Corrections recently estimated the likely reconviction rate of 105 sex offenders committed between 2004 and 2006, using a sophisticated statistical tool for predicting recidivism. Duwe concluded that Minnesota's sex-offender recidivism rate would be just 3.2 percent over four years if the civilly committed offenders had been released — less than half a percentage point higher than if they were kept in confinement.

For the money that taxpayers spend, argues Farnsworth, the psychiatrist, the state could hire four full-time people to monitor each sex offender in the community.

"The tens of millions we're spending is only preventing a tiny sliver of sexual offenses," added Eric Janus, dean of the William Mitchell College of Law and author of a book on sexual violence policy.

"The question we all should be asking is: 'Is there a better way to use that money to enhance our efforts to prevent sexual violence?' "