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:
The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.
SJ, I am sorry for your pain. Thank you for being open and for your perspective.
SJ, I am sorry for the pain you carry. Thank you for stepping forward and giving your perspective.
I know this won’t be a popular observations, but where were the girl’s parents? Why was the defendant in her room? If I were going to make anyone write a letter of apology, it would be the girl’s parents for allowing her to entertain a boy in her room, obviously without supervision. They were sitting on the bed?
Having been victimized as a child, the last thing I would ever want is a letter of apology from the monster who molested me. To me, that is like being victimized, repeatedly.
Well, The thread had common sense about coerced “apologies” then a barrister got involved. Barristers jobs are ostensibly to solve arguments, many that they have contrived. Attorneys produce nothing, they just slice up the pie and take the biggest slice for themselves.
Nick writes, “Attorneys produce nothing, they just slice up the pie and take the biggest slice for themselves.”
Nick, what’s a licensed investigator without an attorney to argue from the evidence he or she provides?
Your comment sounds like an attorney has stiffed you.
One can only conclude the Supreme Court of Washington is as left wing secular fascist as they come. Ordered to voluntarily? Are you Judges really that stupid? How could any thinking reasoning individual have anything but contempt for such rhetoric. Whose pay are you in anyway? Latino name does not mean you are exempt from the edicts of Peron, Eva, Fidel, Raul Che,and Chevato..
Michael Aarethun writes, “left wing secular fascist . . . ” A bit of an oxymoron, isn’t it? The left isn’t into corporatism which is the synonym for fascism, according to the guy who gave the lexicon the word fascism: Benito Mussolini.
Ken Rogers: I think i have watched that Stockman documentary a few years ago, but I’ll check it out again. Autumn’s link to David Harvey’s explanation of the Crises of Capitalism is extremely illuminating.
Capitalism, whether finance or industrial, is a cyclic loser and the end game is disparity in income at the expense of labor. You see it in the media, you see it in the constructive fraud at the ballot box, and everywhere and anywhere wealth-based greed permeates.
Not that I dislike it as an economic model. 🙂
Karen
Since you bring up parents…
Suppose you found a bunch of candy in the pockets of your five year old. He confesses he pocketed them while you were shopping at Mr. Greensleeves corner store. Would you, like many parents, march him down to the store to return the candy and apologize to Mr. Greensleeves? Or is the forced apology worthless?
Rosie: great analogy of the parent taking the child by the arm to the corner store to give an apology. The image would fit into a Norman Rockwell painting.
I would suggest a letter of apology with an extra 10 days added on for every misspelled word or grammatical error.
OR, just use the most dreaded punishment word possible on his ass: “Paragraph”.
Trust me, nothing strikes dread to the nth degree in the average adolescent hoodlum’s numb skull more than that word.
Steve
A forced letter of apology is typically, either openly or subliminally, dealt with by the wrong doer, as a, ‘skate’, ‘slide’, ‘freebie’, etc. For a letter of apology to mean anything it must come from the writer as a product of the writer, not the judge. When I taught school, I tried for a while to require letters of apology. Butkis.
On the other hand the offender, in this case, should be on guard, whether it be probation or community service, including sex education, for at least a year. Perhaps one of his tasks could be to write that letter sometime in the last few months of his education. In any event, a forced letter is, if anything, demeaning to the offender and attached to society’s response to sexual misconduct, it demeans the importance of the lesson. The mutt needs to get really frustrated, slowly, over the course of a year, while attending classes on sexual behavior, against his will, to get the point. If out of this comes a sincere apology, so much the better.
His seduction technique needs improvement as well. I think this can go either way. The letter can end up pro froma just to get the judge and probation office office off his back, or in the course of writing a ‘sincere’ letter he gets the message.
Many parents understand that a forced apology is worthless, as it is insincere, and insulting to the victim and the court. As such, it is also not an effective step in rehabilitation. In fact, this incident has reinforced the fact that the defendant is not sorry at all. As such, his letter would likely be distressing to his victim.
It is clear that this young man is well on the road to becoming a rapist, who will likely spend a lot of his life in jail as an adult. Since he is very clearly not sorry, he has made no steps towards rehabilitation.
One would hope that juveniles who commit crimes can be saved and turned around before they permanently screw up. But a forced letter, which does in fact violate free speech, is not going to do it. Allowing him the opportunity to fake remorse (if he was smarter) is not going to do it, either. Perhaps forcing him to read victim impact letters, like that of the rape victim that recently hit the news, would actually give him some insight into the victim’s point of view. Or having a program where guys in jail tell troubled kids how awful it is to have your every move controlled.
Whatever their efforts at rehabilitation, they should take care not to further upset the victim. Delivering an insincere apology would do exactly that.
Perhaps real rehabilitation would have occurred if her father had arrived and kicked his butt. At least then the consequences of his actions might be driven home. This also drives home how helpless most women are to defend themselves against a determined assailant, and why the 2nd Amendment is the great equalizer for women. Not that it would have helped in every case, but without it, there is very little hope of defending themselves.
@ Steve Groen
The problem is that writing the letter has nothing to do with the question of whether there is any real remorse. I bet his lawyer can write a real whiz-bang apology letter that will meet with the court’s approval.
This reminds me of the old joke about how in the Soviet Union, the workers would pretend to work and the state would pretend to pay them.
Here, the juvenile will pretend to be sorry, and if he’s good enough at it, the court will pretend to believe him. It’s pointless as rehabilitation, although the humiliation of a forced apology might have some value as retribution or specific deterrence (neither of which is supposed to be a factor in the juvenile justice system).
Porkchop: True enough, and I realize his sentence was three months’ community service and the letter, but if he had to face a recommending probation or parole officer or a parole board and the letter was written in lawyerese which it didn’t match his literacy profile, he’d likely face a more difficult time receiving their benedictions. His attorney would be doing him no favors by changing his words, other than perhaps editing his grammar.
In a larger sense, when we have a society in which our two frontrunners for the office of President “pretend to be sorry,” on a daily basis (e.g., Clinton’s private email server apology (“it was a mistake”), her constant evolution on serious social issues, or Trumps’ reply to his remarks on Megyn Kelly’s “blood coming out of her . . . wherever” (he “was referring to her nose” and “she can take care of herself”)), perhaps we should start with remorse from the top down, rather than expecting so much from the bottom up. Our so-called leaders set no example for this young man.
Still, I think a letter of apology has its place, especially if there’s a sense the defendant wrote it, because it may very well illuminate presence and character that might not have surfaced, especially if he invoked his right to remain silent at trial.
Good analysis, Darren. Issac: Making the child write a letter may be a joke to you, but the apology letter, if the child wants an early out for good behavior, better be done and better be heart-felt. His choice – bite the bullet and make amends or embrace the surroundings to his heart’s content.
So, if the juvenile writes and sends a letter approved by the court in compliance with the sentence, what is to stop him from stating publicly the next week, “I’m really not sorry; the only reason I sent that letter was because the judge made me, and I didn’t mean a word of it.” I suppose that the boy, as a juvenile offender, is still subject to the jurisdiction of the juvenile judge and might be subjected to some sanction on the grounds that he clearly needs additional rehabilitative measures. But he still won’t be sorry for the offense he was convicted of, only for offending the judge.
Last week at Sunday dinner, my three-year-old granddaughter was required to “say sorry” for some offense; I suspect the resentment of the humiliation of being required to do that far outweighed any genuine remorse.
It is heartening that most here see the idiocy of making someone apologize. But, in our sensitivity training culture, apologizing, no matter how insincere, is paramount. It’s “progressive” control of ones behavior.
The purpose of the law is to deter. Punishment is a part of deterrence. The point is to stop the behavior. Making the mutt write a letter is a joke. The punk should be sentenced to summer in a work camp as part of a years probations with several hundred hours of community service. The judge is in la la land.
This punishment is strange. Writing a letter of apology for what? Sorry for what he did or sorry he got caught.
Anyone remember movie “Dances with Wolves” and actor playing “Smiles A Lot”?
That’s native actor Nathan Chasing Horse. He’s in trouble with women and girls aged around 15 years old.
Actor, ‘Medicine Man’ Chasing Horse Banished From Fort Peck Reservation
Fort Peck tribal leaders voted 7 to 0, with two abstentions, to pass the education committee’s motion to ban actor and Lakota “spiritual leader” Nathan Chasing Horse from the Fort Peck Reservation.
The motion, which alleges female human trafficking, drug dealing, spiritual abuse and intimidation of tribal members, will stop Chasing Horse from coming onto the reservation.
No apology. Chasing Horse could not be reached for comment. But an attorney representing the actor has threatened the tribal council with a possible lawsuit.
Under federal law, the Tribes have sovereign immunity, meaning they cannot be sued in federal court without their consent. In state court, there is no jurisdiction over tribal government actions. Tribal Court also has no authority over the TEB, as the council never waived sovereign immunity and cannot be sued in their own court.
Dear Judge if iyou will provide an address and the wording I’ll return a text message with your apology for calling you a meaningless twit.
I’m sure the victim really wanted to get a letter from the assailant. What s next a new dating service? That judge has got to be one of the ACLU idiot clone clowns.. Just like having a mandatory recitation with a forced signature for the military oath from draftees. If it’s mandatory its shit. It sure isn’t voluntary. but then the draft is nothing more than a fascist tool of oppression anyway. If enough do not come forward voluntarily it isn’t worth doing much less defending. The use of a draft and such letters as this Washington Twit demands is proof positive in a failed government in which no confidence can be found. They have no reason to exist.
if a compelled pledge in school is unconstitutional then a forced apology letter should be the same thing.
neither has any meaning what so ever if it’s not sincere. it’s an empty mouthing of useless words.
This is pointless as the apology will not be sincere.