Fifteen years ago, Washington drew both fire and praise for its civil commitment law, which allows the state to hold violent sex predators even after they’ve served their prison sentences.
So why couldn’t Washington keep convicted rapist Joseph Edward Duncan III off the streets? Because a state board and a sex-offender evaluator didn’t think Duncan – now accused of kidnapping two Idaho children and killing three other people – was enough of an ongoing threat.
“There just wasn’t the evidence” that Duncan had a mental abnormality and was more likely than not to reoffend, according to Victoria Roberts, chairwoman of the state’s End of Sentence Review Committee. By the time he was released in 2000, Duncan’s crime was two decades old, she said, and there was nothing to indicate that Duncan posed an imminent threat.
“This (rape) occurred when he was 16,” she said. “He was 37 (in 2000), which is a huge difference developmentally.”
Prior to a sex offender’s release from prison, the End of Sentence Review Committee decides which offenders are “sexually violent predators.” The state then tries to win a jury ruling to hold them indefinitely in a secure facility near the state’s McNeil Island prison.
In 1980, Duncan raped a 14-year-old boy in Tacoma at gunpoint. In psychological evaluations after his arrest, Duncan claimed to have committed 13 rapes of young boys.
He subsequently pleaded guilty to one count of first-degree rape.
He was sent to sex offender treatment at Western State Hospital. When he rebelled against that, he was sent to prison “for a term not to exceed 20 years.” At the time, the state had flexible sentencing laws that allowed prisoners to seek early parole. The state switched to fixed sentences in 1984.
In 1994, Duncan sought parole. By then, the state had faced lawsuits from felons who said that the indeterminate sentences were often much longer than fixed ones.
After 148 months served – triple what most offenders got under fixed sentencing – Duncan was released. He moved to Seattle, where he lived from 1994 until March 1997.
But Duncan was rearrested in late 1997 for parole violations, including moving to North Dakota without permission. He was returned to prison until 2000.
Right before his release from the Airway Heights prison, Duncan’s case was reviewed for possible civil commitment. Another psychological evaluation was done. The conclusion: Duncan didn’t meet the criteria.
For one thing, the rape wasn’t considered pedophilia, Roberts said, because there was less than a five-year age difference between attacker and victim.
Secondly, Duncan later recanted the other rapes he’d described to therapists shortly after his arrest. He said that he’d made those things up in order to get into treatment at a mental hospital, rather than going to prison.
“And 20 years later, there was nothing to substantiate that those things had occurred,” said Roberts.
Lastly, there was no evidence that Duncan had re-offended during his three years of freedom in Seattle.
So Duncan was released in 2000, with no probation restrictions, although he was labeled a Level 3 sex offender. The state notified local law enforcement officials.
“All of those bases were covered,” said Roberts. “And given what we knew at the time, I think the right decision was made.”
Since 2001, the state has mandated lifetime post-incarceration supervision for sex offenders. But that didn’t apply to Duncan’s decades-old offense.
In retrospect, Roberts said Wednesday night, she doesn’t see how the state could have done anything differently.
“The dilemma,” she said, “is that when we’re looking at sex offenders … and the offense is committed when the person is a juvenile, do we really want to begin locking these people up for the rest of their lives for something that they might do in the future?”