The Magazine

The Once and Future Offender

Dec 9, 2002, Vol. 8, No. 13 • By DAVID TELL, FOR THE EDITORS
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EARLY ONE EVENING in September 1986, a 17-year-old local girl was walking along West North Street in Wooster, Ohio, a rural town about 50 miles southwest of Cleveland, when Joel Douglas Walton Yockey, 30, also of Wooster, rolled up next to her in a pickup truck and asked if she'd like a ride. Thinking she recognized Yockey as the man who did janitorial work at her church, the teenager accepted the offer. But Yockey was not her church janitor, as it happened, and he did not take her where she wanted to go. Instead, he drove her to a cornfield near his parents' house west of town, told the girl he'd kill her if she made any noise, and then sodomized and raped her. After it was over, Yockey took his victim back to West North Street, handed her a $10 bill, and pushed her out of the truck with a warning that next time she should take a cab. For this crime--and for his remorselessness about it; Yockey insisted that the girl had "come on" to him--he was given a maximum prison sentence of 10 to 25 years.

By all accounts and to all appearances, however, Yockey spent the next 15 of those years doing everything possible to turn his life around. He recanted his trial testimony and acknowledged responsibility and regret for the rape. He joined a series of ad hoc self-improvement workshops: "Convicts Against Sexual Abuse," for example, and the "Power Rapists Group." He completed a more formal, 18-month sex abusers treatment program in 1990, and went on thereafter to earn an associate of arts degree from Ashland University even while holding down a full-time job as groundskeeper in the Chillicothe Correctional Facility's horticultural department. Joel Douglas Walton Yockey, in other words, became a model prisoner. And on that basis--given that he had "family support and a reasonable plan including employment possibilities"--the Ohio Parole Board voted this past January to approve Yockey's release.

By March he was back in Wooster, living with his parents on Porter Drive. One street over, on North Smyser Road, their backyard almost touching the Yockeys' place, Mark and Sharon Jackson were raising two teenage daughters, Katie and Kristen.

Twelve weeks ago, on September 9, six months after Yockey had returned to town, the Jacksons, as a special treat, let both their girls spend the evening before a school holiday with a large group of friends at Wooster's annual Wayne County Fair, where virtually everyone in attendance was a lifelong family acquaintance and where their safety seemed thus assured. Sometime after nightfall, for no particular reason, the younger Jackson sister, Kristen, got separated from her companions in the crowd. But she was a sensible girl, and the fairgrounds were indeed under well-meaning watch by dozens of people who knew her, and many of those people vividly remember catching sight of her at around 9 P.M.: a five-foot-five-inch 14-year-old with a brown pony tail and a purple T-shirt walking toward the fair's main gate.

There, on Vanover Street, maybe a hundred yards from the spot where her recently paroled neighbor Joel Yockey had abducted another teenage girl 16 years before, Kristen Jackson was shortly due to meet her mother. Mere minutes later, Sharon Jackson arrived on schedule for this rendezvous. But by then her daughter had gone missing.

No doubt you have already guessed how this story will end. And your guess is correct, which fact might mercifully obviate the need to recount the rest of the thing in such grisly, slow-motion detail--but for a coincidence of the U.S. Supreme Court docket that suddenly accords this kind of grisly detail a more than ordinary public policy relevance. Specifically: The High Court has just heard, and some time in the next few months will decide, two cases out of Alaska and Connecticut that threaten to invalidate a nationwide system of law designed to protect tens of millions of Americans, women and children primarily, just like Kristen Jackson, from hundreds of thousands of other Americans, recently paroled sex offenders, who either are--or are not--just like Joel Douglas Walton Yockey. The central question is whether it is possible to make reliable, individualized predictions about how such men will behave once they've been released from prison. And, if it is, whether it is constitutional for us to keep tabs on the "safe" ones, too, just in case.

At issue are the "Megan's Law" statutes all 50 states have enacted since 7-year-old Megan Kanka of Hamilton Township, New Jersey, was raped and murdered by a paroled pedophile in 1994. Their application and requirements vary from one jurisdiction to the next, but generally speaking these laws oblige released sex offenders to register their whereabouts with local law enforcement agencies, which are obliged, in turn, to provide some degree of community notification about the neighborhood presence of said registrants. There is quite a bit of powerfully affecting anecdotal evidence that the Megan's Law mechanism has already prevented some truly ghastly crimes: mothers who glance at a Post Office billboard flyer about a convicted child molester only to see the face of their elementary school's bus driver--that sort of thing. Nevertheless, administering the system has proved vastly more difficult than anyone anticipated.

For one thing, cash-strapped city and county police agencies, especially in the larger states, are fighting a desperate and only half-successful battle to stay current with their ex-offender caseloads, a task ironically--and significantly--complicated by the law itself: Many parolees subject to sex-offender registry supervision keep more or less permanently on the move precisely to avoid the intense public scorn and embarrassment that registration necessarily entails.

And then, even more important, there are the lawsuits, which have kept countless Megan's Law programs bottled up in court, and enjoined from functioning in the first place, for years on end. Almost always, sex offender plaintiffs raise two basic constitutional complaints, both of which are squarely presented in the Alaska and Connecticut cases now before the Supreme Court.

To some extent at least, nearly every state now applies its Megan's Law retroactively. In other words: Certain people convicted of certain crimes committed even before the registry statute was enacted are nevertheless required to comply with its terms. Which not infrequently means that they must assist in their own public identification as sex offenders, sometimes for the rest of their lives. Two Alaskan gentlemen named "John Doe," each of them a former prison inmate sentenced in the early 1980s for first degree sexual abuse of his minor daughter, argue that their state's Megan's Law, adopted only in 1994, represents an after-the-fact additional punishment for crimes whose then-legally-authorized consequences they have already paid. Article I, Section 10 of the federal Constitution, they point out, bars any state from passing such an "ex post facto" statute; Megan's Laws like the one in Alaska must therefore fall.

This is not quite so neat a constitutional talking point as memories of fifth-grade civics class might lead you to believe. The ex post facto clause implicates only legislative enactments of a punitive, criminal character. States may pass retroactively applicable laws for non-punitive, civil purposes like public safety, even when the operation of those laws is triggered exclusively by past criminal activity, without offending the ex post facto clause one bit. In April of last year, the Alaska John Does managed to persuade the 9th U.S. Circuit Court of Appeals that Juneau's version of Megan's Law, though explicitly designed simply to provide the public with future protection against sexual predators, is effectively, and thus unconstitutionally, a vindictive, look-back punishment for ancient misdeeds. This, first, because the statute imposes "drastic" and "onerous" liberty restrictions on the Does--purportedly requiring them to make in-person police station appearances to verify their residential and business addresses, four times a year until they die. And, second, because the law's reach is "exceedingly broad," sweeping these two men into its crude "sex offender" designation, on the basis of a little father-daughter incest business many moons ago, without ever giving the designees an opportunity to demonstrate that they no longer pose a threat to anybody.

On appeal to the Supreme Court, Alaska points out that the 9th Circuit has made a rather astonishing error of statutory interpretation: No one, in fact, is ever required to make in-person address verifications under the challenged law. What's more, even if such a requirement did exist, categorical civil regulations of ex-felons are routine and ubiquitous in our federal and state code books, and the Supreme Court has never used the ex post facto clause to strike down a single one of them. Which is why, all across the country, paroled murderers are ineligible for gun permits as a class--and nobody thinks that some panel of psychiatrists should have a case-by-case say about whether the rule is fair.

For good or ill, however, there are people who think that psychiatrists and suchlike experts should have a say in the legal status of paroled rapists and pedophiles. And it is this view, packaged more precisely and interestingly as a Fourteenth Amendment due process claim, that the Supreme Court confronts in the Connecticut Megan's Law case. Here we meet yet another "John Doe" plaintiff. Once upon a time he was sentenced to prison for an unspecified "sexually violent offense." But though he has since been released and claims to be rehabilitated, the state of Connecticut persists in calling him a "sex offender" and compounds the insult by broadcasting its judgment--39 other states and the District of Columbia do this, too--on the Internet. Sure, Mr. Doe concedes, as he must, that technically speaking he is a sex offender. But when the government reports this information to the entire world, Doe complains, it is also defaming him: implicitly labeling him an ongoing public menace while denying him any chance to disprove the charge.

Last year the 2nd U.S. Circuit Court of Appeals agreed with Doe and partially enjoined Connecticut's Megan's Law. Here again, though, the constitutional question is a tricky one. As a strict procedural matter, this John Doe was surely provided all the Fourteenth Amendment process he was ever due way back when a criminal-court jury of his Connecticut peers, no doubt observing every legal nicety, judged him guilty and sent him up river for a "sexually violent offense." And as a matter of so-called "substantive" due process, the present-day residue of Doe's old conviction--Connecticut's public announcement that he is a "sex offender"--cannot, on its face, be defamatory because it is plainly true.

However. Insofar as the unvarnished truth about John Doe's past, officially sanctioned and attached to a public safety alert, indelibly signals that he is still a danger to his fellow man, then that warning might well be unconstitutionally defamatory, we suppose. Provided, that is, as Fourteenth Amendment due process doctrine requires, that the warning is "capable of rebuttal." Or, in the vernacular: If it is possible for the John Does of America to prove that they aren't any longer dangerous, then Megan's Law programs that automatically brand them with that scarlet letter are not just imperfectly successful because difficult to administer--they are an injustice.

This is the bottom-line question, then: Is it indeed possible to determine, one by one and dependably, which ex-convict rapists and pedophiles remain a threat worth calling to the attention of their neighbors, and which ones do not? The various Messrs. Doe and their allies insist that it is. The Alaska Does contend that an "untrained, uninformed public" has been sold a scientifically "unsupported" fantasy about "high rates of recidivism" among sex offenders. Connecticut's Doe complains that his state's Megan's Law "ignores the ability of offenders to be successfully treated." On this Doe's behalf, the New Jersey state public defender brags that he and other "attorneys throughout the United States have become expert in rationally classifying offenders according to their relative likelihood of reoffense." And the Massachusetts Committee for Public Counsel Services, tossing a great mass of numbers around like confetti, demands that "incontrovertibly rehabilitated former offenders" be given back their reputations whole, unblackened by the "harsh" ostracism of Megan's Law obloquy.

Trouble is, all of this is demonstrably false. High rates of sex-crime recidivism are no fantasy, alas. The crimes themselves are "grossly underreported," according to the American Psychiatric Association, and consequently most conventional measures of recidivism and treatment outcome "are flawed." Even so, the best modern research on the subject is genuinely terrifying. A 1997 longitudinal study, using sophisticated statistical "survival analysis," reported that 52 percent of child molesters and rapists released from state custody in Massachusetts over a 25-year period were rearrested for a sex crime--on average, in less than four years. And every one of these people had previously been found "no longer sexually dangerous" by the Massachusetts state agency charged with adjudicating such things. It really isn't possible to figure out who the truly bad ones are.

It wasn't possible with Joel Douglas Walton Yockey, after all.

Ohio has the kind of Megan's Law that the John Does claim to approve. Ohio inspects and rates--on a three-tiered scale of dangerousness--each and every one of its incarcerated sex offenders before it grants them parole. Ohio's parole board interviewed Yockey not once but three separate times, and subjected him to an independent psychiatric examination. Then and only then did Ohio feel secure enough to conclude that Yockey's "risk to reoffend" was sufficiently minimal that he could safely be shipped home to Wooster this past March. And that no one else in Wooster, save the sheriff, need be told about it.

On September 13, FBI agents running down hunches on a case that had gone "very cold" searched Joel Yockey's Jeep and found its interior soaking wet from an unexplained and obviously desperate scrubdown. Hours later, after interviewing Yockey until almost midnight, Wayne County sheriff's deputies told Mark and Sharon Jackson that their daughter was almost certainly dead. On the rainy morning of September 14, Yockey's mother told a neighbor that her son had confessed, and teams of local volunteers were dispatched to five specific spots in a nearby swamp. At one of them they found Kristen Jackson's severed head. At another they found her arms and legs. Kristen Jackson's torso--law enforcement officials wept like babies when they made the announcement--was not recovered.

Case closed.

--David Tell, for the Editors