The Once and Future Offender
Dec 9, 2002, Vol. 8, No. 13 • By DAVID TELL, FOR THE EDITORS
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.
--David Tell, for the Editors