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MSOP case goes forward to fall trial date

Eric Terhaar and Rhonda Bailey aren’t going anywhere for the time being.

Last week U.S. District Court Judge Donovan Frank denied a motion to order the immediate discharge of Terhaar from the Moose Lake facility and a motion to transfer Bailey to a different facility. Frank said he decided to deny the motions and stay the habeas petitions filed on the behalf of the two because he was satisfied the state has at least begun to address the problems.

But if something isn’t done, Frank promised to return to their petitions.

Terhaar and Bailey are two of the approximately 690 people committed to the MSOP program. They are also part of the class action lawsuit that alleges the entire program is unconstitutional. Their cases were picked out by a panel of experts tasked with reviewing the offenders committed to the program as examples of offenders who were not receiving proper treatment.

In Terhaar’s case, the experts concluded he should be immediately released from the program and that there was little evidence to support the conclusion that he is a dangerous sexual offender. Terhaar has spent the last five years in MSOP for offenses he committed from ages 10 to 14. Bailey is the only woman civilly committed in MSOP and the experts said her placement was actually hurting her rehabilitation and treatment. She was diagnosed with mild mental retardation and her “past sexual offenses are no doubt in reaction to the severe, emotional, psychological and sexual abuse” she suffered in her past.

Frank’s order last week was in response to an order to show cause he handed down in June. Terhaar is in the process of being transferred to a less secure facility, where he will receive services to prepare him for life outside the razor wire of the Moose Lake facility. The state has also reached out to various experts on sex offender treatment for women to try to find a more appropriate placement and treatment for Bailey.

But Frank said he has many growing concerns about the program. Not the least of which is that if not for the lawsuit, the cases of Terhaar and Bailey would have never come to light.

“The Court notes its frustration with the fact that Defendants are only now ‘reaching out’ and ‘exploring options’ for Bailey, after receiving the … expert report and Plaintiffs’ motion, when Bailey has been in their treatment program for over twenty years.”

In addition to denying the two motions and staying the habeas petitions, Frank also moved up the trial date for the overarching class-action suit. He set a scheduling conference for Aug. 21 at which the two sides should be prepared to discuss fall trial dates.

Dan Gustafson of Gustafson Gluek in Minneapolis is the lead attorney for the plaintiffs in the class-action suit. He said there is a little bit of something for everyone in Frank’s order.

“I was hoping for a declaration that these two people were being held unconstitutionally, but the order on balance was pretty good,” he said.

Frank didn’t conclude that the state met the threshold to keep Terhaar confined either, Gustafson said. Instead, Frank declined to rule on the motions because he wants to take up the question of whether the MSOP is constitutional as a class-wide issue. He said Terhaar specifically is not an outlier among the MSOP population. More than 50 people have been civilly committed, like Terhaar, for acts committed as juveniles.

“I think the evidence of these two individuals will be at the forefront of the trial,” Gustafson said.

Eric Janus is the dean of the William Mitchell College of Law and a member of a state taskforce that authored a report in 2013 with recommendations on how to change the MSOP.

He said there are some complicating factors in the case that made it hard for Frank to order for Terhaar’s immediate release and for Bailey to be transferred. He described the motion as cautious and prudent and said the plaintiffs got 85 percent of what they wanted. He said it is difficult to “pick out a few individuals from a class and give them relief” and there is also a lot of case law but not enough agreement on the question of whether a federal judge can order the discharge of an offender in state custody.

“I think Judge Frank concluded that it’s not necessary right now to get involved with those issues because it could be a distraction,” he said. “The judge understands that the systemic constitutionality of the whole MSOP is separate from the question of whether these individuals are properly committed.”

Gustafson welcomed the accelerated timeline and said his side could be ready for trial today with the evidence they have. He estimated another six to eight depositions to get ready for a late September or early October trial.

“The evidence we have uncovered is compelling evidence, and it all leads to the fact that this program is not being operated constitutionally,” he said. “The sooner we get to that final conclusion for all the class members the better.”

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