MINNEAPOLIS — The first person will soon be given unconditional release from the Minnesota Sex Offender Program because the state’s human services commissioner decided to stop fighting his discharge this week. The overall program is the subject of an ongoing court challenge over its constitutionality because hardly anyone ever gets out.
Here are some details:
A special judicial panel last month ordered the unconditional release of Eric Terhaar, saying he doesn’t belong in it and may never have. Human Services Commissioner Emily Piper said Wednesday her agency would stop fighting his release and won’t appeal, adding in the statement that she feared an unsuccessful appeal could set a precedent making it harder to keep offenders confined in the program.
It wasn’t immediately clear when the 26-year-old might be released. DHS said it can’t comment on specific clients due to privacy laws, but the panel’s order for his release became effective 15 days after it was issued Aug. 24, which would work out to late this week. His personal attorney did not immediately return a call seeking comment.
Terhaar has said that he wants to live with his father in Long Prairie.
THE LEGAL LANDSCAPE
The 8th U.S. Circuit Court of Appeals is considering the state’s appeal of a federal judge’s declaration that the program is unconstitutional. The ruling came last year in a class-action lawsuit on behalf of sex offenders who were civilly committed as they neared the end of their prison sentences because prosecutors convinced courts that they were still too dangerous to release. The plaintiffs say their indefinite commitments are tantamount to life sentences.
Terhaar is the only person ever to be cleared for an unconditional discharge since the program began more than 20 years ago, according to Dan Gustafson, lead attorney for the plaintiffs in the lawsuit.
As of Thursday, the program’s secure facilities in Moose Lake and St. Peter held 721 offenders whom the Department of Human Services considers clients or patients, not prisoners.
Six offenders who’ve been through the program are currently living in communities under close supervision under provisional discharges granted by the special panel. Three others have been granted provisional discharges but have not yet moved to the community.
During last year’s trial, the plaintiffs’ attorneys used Terhaar as an example of the kinds of offenders being held in the program who shouldn’t be there.
Terhaar was 19 when he was committed solely for sexual misconduct done at ages 10 and 14. Court-appointed experts testified they were shocked to find him in the program, and that research shows most juveniles who act out sexually don’t grow up to become adult sex offenders, Gustafson noted.
Gustafson estimated that Terhaar is one of 65 to 75 residents who are in the program only because of things they did as juveniles, not adults.
Terhaar’s case also marks only the second time that the special panel has overruled the department’s assertion that a client was still too dangerous to release, Gustafson noted. That’s a sign, he said, “that the courts are more closely going to scrutinize the MSOP given the recognition that the program is not working as it was designed to work.”
When he declared the program unconstitutional, U.S. District Judge Donovan Frank stopped short shutting it down. But he ordered several changes to make it easier for offenders to get on a pathway to release — something Minnesota lawmakers have long resisted.
His order is on hold pending the appeals court’s ruling. While that ruling could come any day, Gustafson said he expects it will be sometime this fall.