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After years of indefinitely locking up sex offenders, Minnesota now faces a thornier issue: how to let them out

The state faces a delicate balancing act in dealing with those expected to be released from the Minnesota Sex Offender Program, which a federal judge has ruled unconstitutional.

The Minnesota Sex Offender Program campus in Moose Lake.
MinnPost photo by Briana Bierschbach

On a recent Monday morning in a tiny courtroom in Hastings, Eric Terhaar sat on the witness stand, wiggling uncomfortably in his seat.

An attorney from the state of Minnesota was asking Terhaar to revisit ugly details from his past: how he was sexually abused as a child; how he abused two sisters at age 10; his troubled stints in foster homes and juvenile treatment facilities.

But the 26-year-old Terhaar wasn’t particularly interested in revisiting the circumstances that brought him to the courtroom that day, a history that landed him in Minnesota’s sex offender treatment program since he was 19 years old.

“I don’t really want to get into all that,” he said quietly.

Instead, Terhaar wanted to talk about what he would do if he ever got out. He wanted to move back home with his dad, in Long Prairie, a small town in north central Minnesota. He’d like to go to college, to be an electrician or some other construction trade.

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Terhaar is the poster child for what some experts say is wrong with the Minnesota Sex Offender Program (MSOP), a state-run, high-security treatment facility for rapists, pedophiles and other sex offenders with a history of almost never letting anyone out.

Last June, a federal judge ruled that MSOP — which confines more than 700 people on its campuses in Moose Lake and St. Peter — is unconstitutional for indefinitely locking people up. (Just this week, a federal appeals court in St. Louis heard oral arguments in the state’s appeal of that decision.)

Since the ruling, several offenders have been provisionally released or moved into the final phases of treatment. But awaiting many offenders outside of the program are more restrictions: confinement in group homes or nursing homes; restrictions from getting jobs, using vehicles or going online; and constant G.P.S. monitoring. They can face exile from entire communities in Minnesota, as more local governments place moratoriums on where they can live.

Terhaar is different, though. His only offenses were committed as a juvenile. He’s the first sex offender in the history of the 20-year-old MSOP to be recommended for full, unconditional release by a special review board. If the three-judge panel hearing his case in Hastings approves his release, he would no longer be subject to any monitoring or supervision by the state of Minnesota. It would also means that Terhaar — who’s never had a driver’s license, a bank account, a relationship or a real job outside of the confines of institutions — would have no help from the state in transitioning back into society.

A ‘gradual’ release into society

MSOP opened its campus in Moose Lake in the mid-1990s as a high-security treatment program for sex offenders who were finishing up their prison sentence but were still considered dangerous or to have “sexual psychopathic personalities.” Offenders were civilly committed to the program indefinitely — until experts decided they were ready for release.

But over the years, no one was ever let out of MSOP, and the number of offenders in the program steadily grew. In 2011, a group of offenders filed a federal class action lawsuit alleging the program had become a warehouse instead of a treatment program, thus violating their constitutional rights.

A year later, the state approved the first provisional release from the program: Clarence Opheim, a convicted child rapist in his 60s who had more than 30 victims. Community members and politicians opposed the move, but Opheim was placed in a halfway house in St. Paul under intense supervision. Over the next few years, two more offenders were also provisionally released. All told, six men have now been conditionally released from the program.

Nancy Johnston, a deputy commissioner with the Department of Human Services, which oversees MSOP, said she believes slow reintegration into society is the best way for many of the offenders to prepare themselves for the real world.

“I believe that the safest way to have clients move back into the community is to do it in a gradual way,” she said. “That reintroduction into society is done with support right there. They can walk through that together. Just abruptly moving someone from a secure environment into a setting where there is not any security, that might be OK for some clients, but I think a gradual reintegration is good practice.”

That process starts before an offender even leaves MSOP. As part of the program’s three-phase treatment plan, offenders nearing release are moved to MSOP’s campus in St. Peter, where they can go on supervised community excursions, take money management classes, computer courses and workforce and vocational training.

“Minnesota is one of the only states with a step-down system in place where clients slowly prepare for re-entrance into the community,” Johnston said. “These are men who have been institutionalized for many, many years. Going on an outing doesn’t sound like a big deal, but it is.”

‘A heavy burden’

The release of offenders is delicate balancing act for the state, which must keep the safety of its citizens at the top of mind while also trying to successfully reintegrate offenders back into society.

Yet of the 19 states that have civil commitment programs for sex offenders, Minnesota has the highest number of people committed per capita and the lowest number of releases. Next door in Wisconsin, officials have granted full release to more than 100 offenders and supervised release to nearly 200 others, with low rates of reoffending.

Experts say that the social and political environment outside the razor-wire sex offender institutions plays a big part in successful reintegration. In Minnesota, politicians have long opposed changes to the programs and local governments have sought to gain more legal cover in creating residency restrictions for communities. A bill currently traveling through the Minnesota Legislature would allow local governments to create 500- to 2,000-foot zones around things like schools, playgrounds, churches and daycare centers where offenders couldn’t reside. More than three dozen communities have already put such moratoriums in place, even if the state is the only entity allowed to place sex offenders under Minnesota law.

Rep. Jim Newberger, R-Becker, who is carrying the bill, said the state has done a poor job in placing offenders in small, rural communities. “We can wave state law around all we want, but at the end of the day, if it’s not going to stop a predator from doing the unthinkable to children, what good is the law?”

Most experts, however, say there’s no evidence that residency restrictions do anything to prevent sexual abuse, and in many cases just push sex offenders off the grid. “There’s a lot of questions about the wisdom of many politics regarding sexual offending, but there does not seem to be any dispute that residential restrictions are both ineffective and have detrimental unintended consequences,” said Eric Janus, a professor at Mitchell Hamline School of Law who has studied sex offender laws.

The six offenders released from MSOP so far have been sent to group homes or nursing homes in places like St. Paul, Rochester, and Le Center. In all cases, the offenders are under strict supervision. That includes ankle G.P.S. monitoring, 24-hour surveillance by staff, random searches of possessions and no Internet usage or unsupervised visits outside of the facilities.

St. Paul’s Project Pathfinder, the state’s largest program to treat sex offenders outside of MSOP, offers therapy to sex offenders as they are adjusting to life outside of an institution. That’s where Opheim went when he was released in 2012.

“All the therapy they’ve gotten before this point, which has been very intense, they’ve never gotten to react on,” said Warren Maas, president of the Minnesota Association for the Treatment of Sexual Abusers. “Now they have to deal with their first rejection or first time being intimate and how that feels.”

He thinks supervision after release is oftentimes necessary and can be productive, but there’s not a lot of flexibility in changing the terms of an offender’s release. He thinks Minnesota should have something akin to a drug court for sex offenders, where they can regularly check in and show if they are making progress, or if they are experiencing setbacks. That way changes to the terms of their release can be relaxed or intensified in real time.

“They have such a heavy burden and there’s no way for them to get it lightened up, or it takes them six months to a year to get it changed,” Maas said. “If they had a problem solving court to file in, it wouldn’t be that onerous.”

‘Stagnant’ in MSOP

Terhaar was moved to the St. Peter facility in 2014, and since then, he has taken at least 10 excursions out into the community. He went to the Walmart in Mankato — wearing a G.P.S. device on his ankle — where he picked up groceries and followed a strict list and budget he created himself. He also went to the mall in Mankato, still monitored, where he felt he “fit right in.” He hasn’t been home for a holiday or birthday in more than a decade, but he was allowed to make several supervised visits to his father’s house.

But Terhaar has also had setbacks while in MSOP, which is why the DHS appealed the special review board’s recommendation to release him from the program — the reason for his appearance before the three-judge panel that will make the final decision in his release.

Terhaar said his treatment has been “stagnant” and he stopped participating in polygraph tests because he felt the process was “biased.” Last summer, he was part of a major disciplinary action in the St. Peter program after he made moonshine using yeast and sugars he stole from the facility.

Terhaar said part of the problem is he feels he never should have been placed in MSOP to begin with. He’s part of a class of about 60 offenders in MSOP who have no adult offenses on their records and pose a low risk to reoffend. In 2014, a group of court-appointed experts from across the nation who reviewed the controversial sex offender program singled out Terhaar, saying he should be released immediately — without any conditions attached.

“The carrot never stops moving,” he said. “You take three steps toward the carrot and it moves three steps away from you. I got tired of chasing carrots.”

So his attention has turned to the appeals process. His father, Ron, was in the courtroom this week to hear Eric Terhaar’s testimony. He has a bedroom waiting at his home in Long Prairie for Eric, if the judicial panel approves his unconditional release.

If approved, Terhaar knows he won’t have help from the state, but he fears that any strings attached to his release would also will make it harder for him to go back to school or get a job. He admitted he would rely heavily on his family to help him through his first struggles living in the world for the first time as an adult.

“I would have to take it slowly,” Terhaar admitted, “having new experiences, [ones I] haven’t ever done or haven’t done in a long time.”