By Darren Smith, Weekend Contributor

We have seen many incidents of lower courts ordering those convicted of crimes to endure unusual punishments: some as novel as holding signs advertising that they are criminals; requiring the cutting hair of their children; or forced attendance in Church. While these are fundamentally unusual, a case before us here fortunately never rose to these levels of miscarried justice.

An appellant argued before the Washington Supreme Court that a letter compelled by a juvenile court,  mandating an apology to the victim of a sexual assault, violated his free speech rights by imposing a government mandated speech of which he objected.

Many might see the matter as a minor requirement to apologize to a victim and not “worth the trouble” on behalf of the defendant, or, perhaps representing a rather cold hearted approach by the defendant to contest such a matter out of spite. Yet, the Court likely granted review due to the compelled speech question not having been previously addressed in Washington.

Previous case law in the state tends to much favor free speech which is interpreted to be afforded greater protection within purview of the state constitution, and in most cases provides greater rights than the First Amendment to the U.S. Constitution.

K.H.-H., a 17-year-old male, was charged with assault with sexual motivation after he forced himself on C.R., a female acquaintance who attended the same high school. K.H.-H. and C.R. were sitting on C.R. ‘s bed when K.H.-H. began to kiss her on the face and neck. She responded by telling K.H.-H. to “chill it or to back off.” Undeterred, K.H.-H. pushed C.R. onto her back, leaned over her, and began biting her neck. C.R. protested and tried to push K.H.-H. away and told him to “stop” and
to get off her, and that it hurt. K.H.-H. “pushed his weight down more
on [her] hands,” reached under her shirt and bra in an attempt to touch her breasts, and reached into and “tr[ied] to undo [her] pants.” grabbed her cell phone and threatened to call her father, prompting K.H.-H. to leave the house. C.R. noticed bruises on her neck from the bites and showed the marks to her friend, J.S. J.S. confronted K.H.-H. about the incident and then informed a school official.

The State charged K.H.-H. with two counts of fourth degree assault with
sexual motivation: one for the incident with C.R. and another for an incident involving a different girl. The juvenile court adjudicated K.H.-H. guilty on the count involving C.R. and not guilty on the count involving the other girl. At the disposition hearing, the State requested the court order K.H.-H. to address to C.R. “a sincere written letter of apology … mean[ing] an admission that he did what he was accused of what he’s [sic] doing and [is] sorry he put her in that position.” Defense counsel objected to this condition, insisting that K.H.-H. maintained the right to control his speech.

The juvenile court sentenced K.H.-H. to three months of community supervision and also ordered K.H.-H. to “write a letter of apology to victim C.R. that is approved by the Probation Officer and the State.”
K.H.-H. appealed his conviction and sentence, arguing in part that the apology letter requirement violated his rights under the First Amendment to the United States Constitution to be free from compelled speech.

The state’s Court of Appeals, however, upheld the juvenile court’s sentencing, holding that the apology letter was permissible under United States v. Clark, 918 F.2d 843 (9th Cir. 1990), […] because the apology letter requirement served the State’s compelling interest in rehabilitating juvenile offenders.

Most analogous to the facts here, in Clark the trial court imposed a probation condition requiring two former police officers convicted of perjury to publish apologies for their crimes, which they denied having committed. The officers posited that the apology requirement violated their First Amendment right to refrain from speaking. In rejecting this argument, the Ninth Circuit acknowledged the broad discretion a sentencing judge has in setting probation conditions, reasoning that “even where preferred rights are affected, [the test] is ‘whether the limitations are primarily designed to affect the rehabilitation of the probationer or insure the protection of the public.”‘ Clark, 918 F.2d at 848 (quoting United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 n.14 (9th Cir. 1975)). When applying the analysis from Clark, a court asks whether the sentencing judge imposed the conditions for permissible purposes, and then determines whether the conditions are reasonably related to those purposes.

Returning to the issue of rehabilitation being a preeminent goal of the juvenile justice system, the Court recognized the benefit of tailoring sentencing and probationary supervision of juvenile offenders and also raised the issue of victim’s rights:

Under the Juvenile Justice Act of 1977 (JJA), chapter 13.40 RCW, no
dispute exists that juvenile rehabilitation is an underlying purpose of the act. See, e.g., RCW 13.40.010; State v. J.A., 105 Wn. App. 879, 886, 20 P.3d 487 (2001) (the JJA seeks a balance between rehabilitation and retribution, and the purposes of accountability and punishment must at times give way to the purpose of responding to the needs of the juvenile); State v. Bennett, 92 Wn. App. 63 7, 644, 963 P.2d 212 (1998) (“the JJA is designed to foster rehabilitation as well as accountability of offenders”). Additionally, a victim has an interest in receiving a
letter of apology. The apology letter condition primarily aims to rehabilitate the juvenile offender but also acknowledges the victim’s interest in receiving the apology. An apology allows the victim to hear an acceptance of responsibility from the very person who inflicted the harm. This is particularly important where both the victim and perpetrator are juveniles, and demonstrates to both the significance of giving and receiving an apology for wrongful acts. This further advances the rehabilitative goals of the statute.

Also, juvenile courts are permitted wide latitude and discretion in imposing conditions in a disposition order. This makes sense given that juveniles are, by their very nature, still developing. The JJA recognizes the differences between adults and juveniles and embraces rehabilitation as a primary goal rather than a focus primarily on punishment. Because of this, the court held that a juvenile court can impose and require reasonable conditions that are related to the crime of which the offender was convicted and that further the reformation and rehabilitation of the juvenile. The juvenile court imposed the letter of apology condition for the purpose of rehabilitating K.H.-H. Specifically, the court was concerned that K.H.-H. refused to accept the
consequences of his harmful conduct. The trial court discussed K.H.-H.’s “pattern of bad behavior with women” and pattern of “being disrespectful to women” and that the court had grown increasingly concerned after having heard the testimony from the two young victims. The court ordered this condition in an effort to address this type of behavior and help K.H.-H. understand that his actions were harmful to young women.

Pertaining to the Free Speech question, the majority focused on government-compelled speech as addressed at the federal level:

The United States Supreme Court has held that “the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking
at all.” Wooley v. Maynard, 430 U.S. 705, 714, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977). The protection from compelled speech extends to statements of fact as well as of opinion. Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 62, 126 S. Ct. 1297, 164 L. Ed. 2d 156 (2006). Article I, section 5 of the Washington Constitution guarantees that “[e]very person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.” WASH. CONST. art. I, § 5. K.H.-H. does not advocate an independent state constitutional analysis but instead argues this cases articulates a distinct First Amendment analysis. The issue here centers on the protection from government-compelled speech.

Because a forced apology involves making an offender say something he
does not wish to say, it implicates the compelled speech doctrine. The compelled speech doctrine generally dictates that the State cannot force individuals to deliver messages that they do not wish to make. See, e.g., Wooley, 430 U.S. 705 (the State may not compel individuals to display on their vehicles a license plate motto with which they disagree); W. Va. State Ed. of Educ. v. Barnette, 319 U.S. 624, 63 S. Ct.. 1178, 87 L. Ed. 1628 (1943) (a compelled flag salute and pledge of allegiance in public schools violates the First Amendment).

First Amendment rights are not absolute, however, particularly in the
context of prison and probation, where constitutional rights are lessened or not applicable. Similarly, criminal convictions result in loss or lessening of constitutional rights. Because of this, the Court found Wooley and Barnette are inapplicable in the present case, as they define the boundaries of free speech for those not convicted of crimes. While the Supreme Court has never addressed anything related to the constitutionality of a probation condition that implicates an
individual’s right to free speech, the federal circuit courts have reviewed this issue and analyzed it under similar situations.

All other common and statutory law aside, in its conclusion the Court rather stated plainly but nonetheless effectively, the foundation of its ruling:

One must face the consequences of a conviction, which often include the loss or lessening of constitutional rights. There is a whole range of constitutional rights that can be affected by a conviction, not the least of which is a loss of liberty. There may be a limitation on the degree to which First Amendment rights may be restricted for those convicted of crimes, but an apology letter condition does not approach that limit.

By Darren Smith

Source:

State v. K.H.-H.

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