For the first time in more than two decades, a review board is recommending the full and unconditional release of a sex offender from Minnesota’s high-security treatment program.
On Sept. 8, the Special Review Board of the Minnesota Sex Offender Program (MSOP) recommended Eric Terhaar for release from the program with no conditions attached.
Since the program first opened its doors in Moose Lake in 1994, only five people have been recommended and approved for release, but nearly all of those offenders were sent to halfway houses or group homes and are still under intense supervision by the state. One offender broke the rules of his conditional release and was sent back to the program, while the latest offender’s provisional release is awaiting final approval.
Terhaar, 25, has spent the last six years in MSOP and has become a kind of mascot for the controversy surrounding the program. He’s part of a group of more than 60 men in MSOP whose only offenses were committed as juveniles. The way the program is set up, juvenile offenders are treated alongside adult serial rapists and pedophiles.
“I think it demonstrates, overall, that there are some serious flaws in the program,” said Timothy Churchwell, Terhaar’s lawyer who has represented clients in MSOP for 20 years. “As it relates to Mr. Terhaar, it’s a situation that has really gone way too far.”
The process isn’t complete yet: the Minnesota Department of Human Services and the Todd County prosecutor (where Terhaar was originally committed to the program) have 30 days after the recommendation to appeal his release.
DHS wouldn’t comment on a possible appeal, while a county attorney said they would defer to state officials. A judicial panel appointed by the state Supreme Court will make the final call on Terhaar’s release.
Part of larger case
Terhaar was recommended for immediate release from the program last year by a panel of experts as part of a class-action lawsuit against MSOP. U.S. District Judge Donovan Frank denied his individual release, but this June Frank ruled the entire program is unconstitutional because it locks up more than 700 people with little hope of release.
The sex offenders in MSOP have already served prison terms; once they near the end of their sentence, they can be reviewed and committed to MSOP for treatment if they’re still considered dangerous.
As a baby, Terhaar was abandoned by his mother and wound up in foster care. As a child, he was sexually abused by his uncle, and he sexually abused his own sister by the time he was 10. In juvenile facilities, Terhaar repeatedly got in trouble, often fighting with other delinquents or verbally assaulting staff.
Last fall, four experts from sex offender programs in New York, Wisconsin and Florida told the court that such incidents are not surprising given Terhaar’s own traumatic childhood. His sexual behavior has developed into that of a normal young adult during his time in MSOP, they said. Many states don’t allow for the civil commitment of people with only juvenile offenses, and their rate of re-offense as adults is low.
“It breaks every rule research tells us we should follow,” said Robin Wilson, one of the court-appointed experts who worked in Florida’s sex offender treatment program.
In an effort to raise questions about his readiness for release, Deputy Attorney General Nate Brennaman brought up Terhaar’s pattern of behavioral problems. At the time, Terhaar had committed three physical assaults against other MSOP patients and 47 smaller rule violations, Brennaman said. Brennaman also brought up an incident that occurred not long before Terhaar was civilly commitment to MSOP in 2009, when he was living with a foster family in Avon, Minnesota. Then 17, Terhaar was caught masturbating in a darkened car with a young child nearby while his foster parents picked up groceries.
But while the state argued against his immediate release, Nancy Johnston, executive director of MSOP, testified that the lawsuit did put the state on an “expedited” track to release Terhaar.
Why now?
Three offenders have been recommended for release since the program was ruled unconstitutional in June. Eric Janus, the former dean of the William Mitchell College of Law who has studied sex offender laws for more than 20 years, said the sudden spike in releases is “suspicious.”
“It’s like the Hoover Dam and a couple of drops have gotten through,” he said. “The scale of change that’s necessary is large. Does it have to start with one, two, three, four, five people? Yes, of course, but obviously they are going to have to change the system, not just make individual releases.”
State lawmakers have been ordered into Judge Frank’s courtroom on Sept. 30 to discuss remedies to the broader constitutional questions surrounding the program.
Terhaar’s possible release also brings up questions about his ability to transition back into society. Terhaar has been institutionalized since age 10, and there will be limited state resources available to help him if he’s granted a full release from MSOP.
“How do you buy toothpaste, how do you live on a budget?” Naomi Freeman, an expert from the Bureau of Sex Offender Evaluation and Treatment in New York, asked last fall. “All those little things we take for granted.”
Depends on the goal
If the goal of the MSOP program is rehabilitation, then “How do you buy toothpaste? How do you live on a budget?” ought to be part of the program. That those kinds of things apparently are not part of the program suggests to this outsider that the whole focus of the program is perpetual punishment. There may be theological systems wherein that attitude is permissible, but the state should have nothing to do with theology, and everything to do with preparing prisoners for a functioning return to society. Nothing I’ve read about this case suggests that that is what the program is about. Instead, we have incarceration without the name or, except in extremely rare cases, any hope of ever getting *out* of the program. Judge Frank has been overly merciful to the state as far as I’m concerned, and to a program based on a perverse combination of fear and retribution that should have no place at all in a system that purports to deliver “justice.”
Exactly
This is particularly troubling since it’s likely that individuals like Terhaar aren’t going to go back to a family that can provide support and guidance. Terhaar, like many offenders that had issues since childhood are actually the product of terrible upbringing, so there simply isn’t anyone he’ll be able to turn to. And, we don’t teach them how to live because we have no expectation that they’ll ever get the chance.
And then, something shifts and someone notices that these people are simply being caged forever, and now we’re going to just let them walk out and…what?
Now, this problem isn’t limited to this program in this state. You will find people jailed as juveniles in adult prisons who will likely never leave alive, and if they do, will end up in poor circumstances because they’re now adults…with criminal records…who have never held a job, never had an apartment, never paid bills, no credit, no money, no decent family, and I’ll remind you…have a criminal record. This shift is akin to the deinstitutionalization in the 70’s and 80’s, where the examples of cruelty within the system resulted in simply getting rid of all the institutions for the mentally ill and dumping many mentally ill people onto the streets rather than humanely transitioning them into communities with reasonable support. The result has literally been the transfer of many mentally ill to living on the streets or into prisons, with an added bonus of making it much more difficult to treat the severely mentally ill sufficiently.
Certainly, some people will be better off due to rethinking the program and reducing the number incarcerated indefinitely–there were and still are many benefits to some individuals from the deinstitutionalization of the mentally ill– but what of the people who won’t be? It seems to me that the decision has been rightly forced, but there’s been no thought to how to humanely make it happen.