The Minnesota Sex Offender Program, explained

Last week, inside a federal courtroom in St. Paul, U.S. District Court Judge Donovan Frank heard several days of testimony from a team of experts appointed to review how the state administers its Minnesota Sex Offender Program — the subject of a class action lawsuit that has raised numerous questions about the program’s constitutionality.

Specifically, the hearing was called to determine whether one of MSOP’s patients, a 24-year-old offender named Eric Terhaar, should be released from the program. The state is opposing Terhaar’s release, saying he needs a more time in MSOP before reintegrating into society.

Frank is expected to make a ruling within the next few weeks on the fate of Terhaar, a ruling that could pave the way for other MSOP clients to be released. Before that happens, though, here’s what you need to know about Minnesota’s complicated system for treating sex offenders — and why it’s become such a hot button issue:

So what exactly is the Minnesota Sex Offender Treatment Program? The program — often referred to simply as MSOP — opened in Moose Lake in 1995 as a high-security treatment program for sex offenders who are believed to be dangerous or have a “sexual psychopathic personalities.” A typical “client” in the program might show a lack of remorse for their actions or seem likely to reoffend. The treatment is administered by the state Department of Human Services. 

Why are sex offenders in MSOP called “clients”? In short: because they can’t be called prisoners. In fact, most — but not all — people in MSOP have completed prison sentences for sex offenses, and have been sent to MSOP for continued treatment through a process called “civil commitment.”

So what is “civil commitment”? When a sex offender nears the end of their prison sentence in Minnesota, the Department of Corrections puts them through a screening process, referring those who may be appropriate for commitment to county attorneys. County attorneys then determine whether to file a petition for commitment with the district courts, where a judge makes the final call.

What kind of treatment do people receive at MSOP? The program includes three “phases” of treatment for clients. Most of the individuals in the program are in the first phase of treatment, which focuses on adjusting clients to the rules of the program and treatment basics. Only in the second phase of treatment do clients detail their sexual history. The third stage of treatment takes place at another MSOP facility, in St. Peter. Clients are allowed to take supervised excursions into the community. If they do well, the client can petition a special review board to go into a program known as Community Preparation Services (CPS). As the name suggests, CPS is supposed to prepare clients to go back into the community. Clients get certain privileges there, including college-level classes and the ability to move around freely — under supervision — in a facility just outside the razor wire.

How many people are in the program? As of June 30, there were 697 clients receiving treatment in MSOP. That’s a dramatic increase from 2000, when the program only treated about 150 offenders. Today, Minnesota commits more sex offenders per capita than any other state with a similar program.

Why so many? The large increase in the number of people civilly committed to MSOP can be traced back to a single event: The 2003 abduction and murder of North Dakota college student Dru Sjodin, who was killed by Alfonso Rodriguez Jr., a sex offender who had just completed a 23-year prison sentence. Her murder horrified the public and alarmed politicians, who subsequently cracked down on sex offender confinement in Minnesota.

How are offenders released from the program? Treatment in the program is “indefinite,” and MSOP technically does not have authority to let anyone out. Clients must petition the Supreme Court Appeal Panel — commonly called the “SCAP process” — before they can either move to CPS or be discharged from their commitment altogether. As of June 30, 26 clients have successfully petitioned to move into the final phase of treatment, but the panel has never granted anyone permanent release from the program.

Wait, so nobody has ever gotten out of MSOP? Not unconditionally. One person, Clarence Opheim, was provisionally released from the program in 2012, but is still under the state watch in a halfway house. Opheim first went to prison in 1988 for molesting an 11-year-old boy, and later admitted to molesting 29 children.

How much does the program cost taxpayers? The program will cost about $81 million during the 2015 fiscal year. It costs about $120,000 per offender for housing and treatment each year — or about three times what it costs to house the average prison inmate in Minnesota.

Why is everyone talking about this now? MSOP is under intense scrutiny thanks to a federal class action lawsuit filed on behalf of all clients in the program. The suit alleges that MSOP unconstitutionally confines clients receiving treatment — with no hope of ever getting out. In a February ruling, using words like “draconian” and “broken,” Judge Frank raised questions about MSOP’s constitutionality and asked legislators to address his concerns during the 2014 session. Legislators failed to come up with a plan to fix the program, so Frank and a four-person panel of experts are reviewing each case of civil commitment in the state. The panel is also putting together a broader report on the program due out at the end of the summer.

Who is Eric Terhaar? Terhaar is likely to be the first person ever fully released from the program, and represents a particularly vexing part of the program: 52 MSOP clients who have never been charged as adults as sex offenders. Terhaar’s offenses — which include the rape of his sister when he was 10 — all occurred before the age of 15. When the expert panel reviewed Terhaar’s case, it recommended him for unconditional release, saying he’s not a danger to the public. They also said people like Terhaar should never have been committed to MSOP alongside serial rapists and child molesters. Not only should the treatment of juvenile offenses be different from an adult’s treatment, they say, but juveniles’ likelihood of re-offending as an adult is much lower. Frank is expected to make a ruling on his case, and that of the only woman locked in MSOP, Rhonda Bailey, in the next few weeks. 

Can’t the Legislature do something to fix the situation? The state Senate passed a bill in 2013 that would have put only the most dangerous offenders in the program, while others would be placed in a less restricted environment. It also established a two-step hearing process that would determine if commitment is needed and, if necessary, the terms of that commitment. But the proposal stalled last session in the state House, where all 134 members are up for re-election this fall. Republicans and Democrats butted heads over a solution, and without buy-in from both parties during at contentious election season, the Democrats who control the House didn’t want to expose themselves to campaign attacks over releasing sex offenders.

Why is the issue so political? It probably goes without saying that sex offenders are a highly stigmatized group, and the release of an offender into a new community — even under intense supervision — brings up issues of public safety. And while it’s up to the Supreme Court Appeal Panel to grant releases to offenders, the Department of Human Services can oppose any release. Because DHS is overseen by a commissioner appointed by the governor, it would be easy to pin any movement of an offender on a political administration. For example, late last year, Republican gubernatorial candidates criticized Gov. Mark Dayton over the proposed transfer of six men from the Minnesota Security Hospital in St. Peter to a less restrictive facility in Cambridge. Those plans were ultimately suspended.

Can a federal judge simply release someone from the program? There’s some disagreement about what power the federal court has to release Terhaar — or any other offender from the program. Dan Gustafson, the attorney representing clients in MSOP, said the court could declare Terhaar’s confinement unconstitutional, which would force the state’s hand in petitioning for his release. Nathan Brennaman, an attorney for the state, however, believes the court only has the authority to grant injunctive relief and call on the state to make system-wide changes to the program.

Could the lawsuit lead to someone dangerous getting out of MSOP? Not likely. As the experts testified in court last week, the people they are looking to release are those that are particularly vulnerable or unlikely to offend. That includes offenders with only no adult criminal history, the elderly (MSOP has clients as old as 92) and developmentally disabled clients who may struggle with treatment.