Wednesday, September 14, 2016

The Juvenile, the Apology and the First Amendment

This post examines an opinion from the Supreme Court of Washington, sitting en banc. State v. K.H.-H., 185 Wash.2d 745, 374 P.3d 1141(2016).  The court began the opinion by explaining that
[t]his case involves whether a juvenile disposition condition requiring K.H.–H.—who was adjudicated guilty of fourth degree assault with sexual motivation—to write an apology letter to the victim violates his constitutional free speech rights. U.S. Constitution amend. I.  
State v. K.H.-H., supra.
And then, as courts usually do, the Supreme Court outlined the facts in the case and its “procedural history”:
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.’ Verbatim Tr. of Proceedings (Aug. 13, 2013) (VTP) at 29. 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. VTP at 35. 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.’ VTP at 32, 33. C.R. 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.’ VTP at 149. Defense counsel objected to this condition, insisting that K.H.–H. maintained the right to control his speech.
State v. K.H.-H., supra.
The opinion went to explain that 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.’ Clerk's Papers (CP) at 42. 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 Court of Appeals affirmed the sentence, holding that the apology letter was permissible under United States v. Clark, 918 F.2d 843 (U.S. Court of Appeals for the 9th Circuit 1990), overruled on other grounds by United States v. Keys, 133 F.3d 1282 (U.S. Court of Appeals for the 9th Circuit 1998), because the apology letter requirement served the State's compelling interest in rehabilitating juvenile offenders. State v. K.H.–H., 188 Wash.App. 413, 421, 353 P.3d 661 (Court of Appeals of Washington 2015).

This court granted K.H.–H.'s petition for review of the condition requiring him to write the apology letter. State v. K.H.–H., 184 Wash.2d 1010, 360 P.3d 817 (Washington Supreme Court 2015).
State v. K.H.-H., supra.
The opinion went on to explain that the Revised Code of Washington (RCW) § 13.40.020(5) defines “community supervision” as
an order of disposition by the court of an adjudicated youth not committed to the department or an order granting a deferred disposition. A community supervision order for a single offense may be for a period of up to two years for a sex offense . . . and up to one year for other offenses. As a mandatory condition of any term of community supervision, the court shall order the juvenile to refrain from committing new offenses. As a mandatory condition of community supervision, the court shall order the juvenile to comply with the mandatory school attendance provisions of chapter 28A.225 RCW and to inform the school of the existence of this requirement.
State v. K.H.-H., supra. 
Getting back to the Supreme Court’s opinion, the court explained that
[t]his court has never addressed the question of whether it is a violation of the First Amendment or our own articleI, section 5 of the Washington Constitution to order a juvenile defendant in a criminal case to write a letter of apology.

The First Amendment prohibits states from `abridging the freedom of speech.’ U.S. CONST. amendment I; see Gitlow v. New York, 268 U.S. 652, 666 (1925). 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 (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 (2006)Article I, section 5 of the WashingtonConstitution guarantees that `[e]very person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.’ Washington Constitution article I, § 5. K.H.–H. does not advocate an independent state constitutional analysis but instead argues our cases articulate a First Amendment analysis distinct from that applied in Clark.  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 v. Maynard, supra (the State may not compel individuals to display on their vehicles a license plate motto with which they disagree); West Virginia State Board of Education v. Barnette, 319 U.S. 624 (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, we find 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. The Court of Appeals in the present case relied on the analysis used by the Second and Ninth Circuits as articulated in United States v. Clark, supra in deciding that the disposition did not violate the First Amendment. See State v. K.H.-H., supra.
State v. K.H.-H., supra. 
The Washington Supreme Court then pointed out that
[m]ost 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.”’ United States v. Clark, supra (quoting United States v. Consuelo–Gonzalez, 521 F.2d 259, 265 n. 14 (U.S. Court of Appeals for the 9th Circuit 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. United States v. Clark, supra.

Asserting that Washington's case law requires more than the ostensible reasonably related standard articulated in United States v. Clark, K.H.–H. cites State v. Bahl, 164 Wash.2d 739, 757–58, 193 P.3d 678 (2008). Bahl concerned a constitutional vagueness challenge to a community custody condition that the defendant not possess or access pornographic materials, imposed under the Sentencing Reform Act of 1981, chapter 9.94A RCW. Bahl, 164 Wash.2d at 743, 193 P.3d 678.
State v. K.H.-H., supra. 
The opinion goes on to explain that while
Clark and Bahl use different words and terms, they both embrace a somewhat similar approach of looking at the underlying purpose of the act as well as the nature of the crime in determining whether the condition is appropriate. The principles anchoring the analysis in both cases can be traced to the same source. The origins of the `reasonably related’ analysis utilized in Clark come from the case Consuelo–Gonzalez, which analyzed the scope of constitutional protections available to probationers that were subject to limitations under the federal Probation Act, ch. 521, 43 Stat. 1259 (1925). Consuelo–Gonzalez, 521 F.2d at 264–65. In evaluating the federal Probation Act's underlying purpose of rehabilitation, the court recognized that the development of a sensible probationary system `requires that any condition which is imposed following conviction, whether or not it touches upon ‘preferred’ rights, must be viewed in the context of the goals underlying the Act.’ Consuelo–Gonzalez, 521 F.2d at 265 n. 14. The court held that fundamental rights may be limited if they are imposed sensitively and with a `keen appreciation’ that the limitation serve the purpose of the underlying act. Consuelo–Gonzalez, 521 F.2d at 265.

Both Clark and Bahl cite back to Consuelo–Gonzalez, but Bahl fashioned its analysis from Riley and Malone. Bahl, 164 Wash.2d at 757, 193 P.3d 678. . . . Additionally, the court in Bahl—whose inquiry was focused on a vagueness challenge—briefly mentioned the analysis from Malone in the context of providing an example to refute the State's claim that probationary conditions in Washington need only be crime related. The language in Malone refers to the constitutionality of a condition that restricts an individual's freedom of association. Furthermore, the case on which Malone relies, Birzon v. King, 469 F.2d 1241, 1243 (U.S. Court of Appeals for the 2d Circuit 1972), states that `the Government can infringe the first amendment rights of prisoners so long as the restrictions are reasonably and necessarily related to the advancement of some justifiable purpose of imprisonment.’ (Emphasis added.)
State v. K.H.-H., supra. 
The Supreme Court then began the analysis that would yield its holding, i.e., its final decision, in this case, noting, initially, that
[e]ven under Bahl 's somewhat different language, an apology letter condition would be upheld. The apology letter condition is specific and concrete. In the context of the present case, we find the condition is related to the crime of which the offender was convicted and furthers the reformation and rehabilitation of the juvenile, the purpose of the underlying act.

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 Wash.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 Wash.App. 637, 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.

This conclusion is consistent with the statutory goals that identify measures that may be used to effectuate the purpose of rehabilitation. As part of the disposition order, juvenile courts are permitted to enter `local sanctions.’ RCW 13.40.160, .0357. Such sanctions include `0–12 months of community supervision.’ RCW 13.40.020(18). `Community supervision’ is defined as `an individualized program’ during a probationary period that includes `[m]onitoring and reporting requirements.’ RCW 13.40.020(5)(c). `”Monitoring and reporting requirements”’ authorize the court to enter `other conditions or limitations as the court may require which may not include confinement.’ RCW 13.40.020(20) (emphasis added).
State v. K.H.-H., supra. 
The Supreme Court then outlined its “holding” in the case, i.e., its disposition of the issues in this appeal:
Under the broad authority and discretion given to juvenile courts to craft dispositions that adhere to the legislative intent of rehabilitation and crime-relatedness, the juvenile court in the present case ordered K.H.–H. to `write a letter of apology to victim C.R. that is approved by the Probation Officer and the State.’ CP at 42; see State v. D.H., 102 Wash.App. 620, 629, 9 P.3d 253 (2000) (`The juvenile court has considerable discretion to fashion an individualized rehabilitative disposition that includes a broad range of community supervision conditions’). The record in this case supports our conclusion that 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. VTP at 154, 156. 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.

A letter of apology demonstrates a recognition and acceptance of responsibility for harmful actions. Such a condition is reasonably necessary for K.H.–H. to recognize what he did was wrong and to acknowledge his behavior.

Additionally, an apology letter recognizes the victim's interest in receiving an apology from the perpetrator. 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.

The outward manifestation of accepting and apologizing for the consequences of one's actions is a rehabilitative step that attempts to improve K.H.–H.'s character and outlook. Such a condition is reasonably related to the purpose of K.H.–H.'s rehabilitation and the crime here.

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. We affirm.
State v. K.H.-H., supra. 
Five of Washington state’s Supreme Court Justices concurred in the opinion summarized above. State v. K.H.-H., supra. 
One of the state's Supreme Court Justices dissented, explaining, among other things, that
[u]nder the Supreme Court's test in Procunier v. Martinez, 416 U.S. 396 (1974) overruled in part by Thornburgh v. Abbott, 490 U.S. 401 (1989)), the government cannot restrict the content of a prison inmate's speech in this context unless the restriction `further [s] an important or substantial governmental interest’ and is narrowly tailored so that it infringes on `no greater [speech] than is necessary or essential to the protection of the particular governmental interest involved.’ Procunier v. Martinez, supra.

The compelled confession and apology in this case fails that narrow-tailoring requirement. Under the test we articulated in Bahl, the condition must be ‘”reasonably necessary to accomplish the essential needs of the state and public order,”’ Bahl, 164 Wash.2d at 757, 193 P.3d 678 (internal quotations marks omitted) (quoting Riley, 121 Wash.2d at 37–38, 846 P.2d 1365).

The compelled confession and apology in this case fails that requirement also. In fact, under controlling Supreme Court precedent, compelled speeches and pledges are probably the worst ways to teach remorse or anything else: `A person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn.’ W. Va. State Bd. Of Educ. v. Barnette, 319 U.S. 624, 632-636.
State v. K.H.-H., supra (McCloud, J., dissenting).

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