When I started practicing law in 1981, judges had enormous discretionary sentencing powers. Judges could impose a twenty-year prison sentence for a felony, but then suspend some or all of the time. The suspended time could, of course, later be revoked. Judges would continue supervising defendants concerning their compliance with regularly scheduled review hearings. The Washington Sentencing Reform Act of 1981 (effective in 1984) changed all that. Washington went to a determinate sentencing system. A defendant now did the time for the crime. Based on the seriousness of the crime, and the defendant’s criminal history, judges now had to sentence within a ‘presumptive sentencing range.’ Judges no longer had much discretion. One just added up ‘point totals,’ and the judge was left with a required range.
There was a notable exception to the new mode of mandatory sentencing. When a defendant was charged with a child sex crime, such as Child Molestation in the First Degree (as in the case of Mr. Petterson), the judge could order 51-68 months in prison, then suspend the time. This is known as a “Special Sex Offender Sentencing Alternative,’ commonly known as a ‘SSOSA.’ Judges retained some discretion over compliance, and could indeed revoke the SSOSA and send the offender to prison, but almost all the supervision of the offender was ceded to the Washington Department of Corrections (DOC).
Mr. Petterson received a SSOSA way back in 2002. After spending 6 months in county jail, 62 months of his 68-month sentence was suspended. Child Molestation 1 is a Class A felony, with a maximum term of life imprisonment. So, the 62 months was suspended for the maximum term of life. Mr. Petterson was placed on probation and required to comply with all conditions of DOC, who was supervising his treatment and conditions of compliance.
Mr. Petterson did well in his treatment, and in 2005 the court ended his obligation to receive sex offender treatment. The court also terminated Mr. Petterson’s probation. In December 2006, the state filed a motion to reinstate it. The motion was granted, and the court entered an amended order reinstating lifetime probation. Mr. Petterson appealed this order, but the Washington Court of Appeals, in 2008, determined the order terminating probation was a ‘scrivener’s error’ (i.e. an unintended mistake) and affirmed the order reinstating lifetime probation.
Mr. Petterson did not let the matter drop. In 2008, he filed a motion to terminate probation. The court did not terminate the probation, but it did along for it to have only two conditions: (1) obey all laws; and (2) update DOC with any address change or phone number change. The DOC did not take a position on the revised probation order. In fact, Mr. Petterson’s probation office supported his motion to terminate. But the matter still wasn’t resolved. In August 2015, DOC filed a motion to reinstate the SSOSA condition requiring Mr. Petterson to comply with any conditions imposed by DOC. In September 2015, the superior court entered a new order granting the DOC motion. The court ruled that compliance with conditions imposed by DOC was a mandatory condition.
The Petterson case is an important one for all SSOSA recipients. His case illustrates clearly that a person receiving the benefit of a SSOSA will have lifelong probation. Quite literally, forever. The DOC will be making decisions on what a SSOSA participant does or does not do for the remainder of their life. Everything from going to a movie theater to whether the person can drink alcohol. The appellate court in Petterson recognized there might be some discretion to modify conditions, but ending supervision by DOC is not allowed. The opinion seems to be saying that modification of any conditions must get court approval, such as the court approving some light consumption of alcohol. How many offenders can afford to go to court to have such restrictions addressed? SSOSA participants truly will have lifetime supervision, and it will be unrealistic in most situations to have the court modify or clarify conditions because of the time and expense involved.