“Get Immunity!”
A very recent appellate case, State v. Powell, at 193 Wn.App. 112 (March 2016), touches on many issues commonly seen in Special Sex Offender Sentencing Alternative (“SSOSA”) cases. Ironically, Steven Craig Powell (“Mr. Powell”) had not received a SSOSA, but, instead, a 30-month prison sentence after conviction to 12 counts of voyeurism.
After release from prison, Mr. Powell was to serve 30 months of “community custody” and be supervised by the local Department of Corrections (“DOC”) office in Snohomish County, WA. Mr. Powell’s original judgment and sentence ordered that he follow all terms and conditions of DOC and its’ community custody conditions. The terms of Mr. Powell’s community custody conditions included completing a sexual deviancy evaluation and follow all conditions imposed by the sexual deviancy treatment provider. The appellate court in Powell specifically noted that Mr. Powell’s judgment and sentence had this condition “imposed by the court as part of the defendant’s criminal sentence.” State v. Powell, at 115. Mr. Powell had not agreed to this condition on his own.
When Mr. Powell met with a sexual deviancy treatment provider to start the evaluation process, he refused to sign an agreement wherein he would have to disclose his complete sexual history, asserting he had a Fifth Amendment right not to incriminate himself. Therefore, he would not complete the required evaluation.
The State prosecutor alleged at a later “violation hearing” that Mr. Powell was in violation of his community custody by (1) not completing the evaluation; and (2) not following conditions imposed by the treatment provider, i.e. disclosing his entire sexual history.
The reviewing court in Snohomish County held Mr. Powell did indeed violate his community custody terms by failing to complete the evaluation. The court ordered a 40-day jail sanction, and that Mr. Powell comply with the terms of his community custody, meaning, in all likelihood, that he would be compelled to disclose his entire sexual history to the evaluator.
Mr. Powell challenged the trial court ruling, arguing the Stated violated his Fifth Amendment rights against self-incrimination by requiring him to disclose his sexual history without a grant of immunity from prosecution. Mr. Powell conceded at his violation hearing he could be required to provide his sexual history if he had been granted immunity. Mr. Powell argued he was being punished for exercising his constitutional right to refuse to disclose.
The appellate court bluntly agreed.
The Washington Court of Appeals used guidance found in a federal ninth circuit case, U.S. v. Antelope, 395 F.3d 1128 (2005) wherein the Defendant, who had pled guilty to possession of child pornography, was ordered to be in treatment which required a “full disclosure polygraph.” The Defendant there refused to do so without “an assurance of immunity.”
The Washington Court in Mr. Powell’s case saw a direct similarity: “the penalties were imposed in an effort to compel disclosures and as punishment for asserting his right to remain silent.” Powell, at 119. The State had never disputed Mr. Powell would incriminate himself if compelled to disclose his sexual history; the State simply would not grant him immunity. However, on appeal, the State conceded it could not compel Mr. Powell to disclose incriminating sexual history without granting him immunity from using those disclosures in subsequent proceedings against him. Powell, at 120.
The Powell Court recognized that there can be an insistence on full disclosure “so long as the State recognizes [through immunity] that the answers may not be used in a subsequent criminal proceeding.” Id.
The Powell Court held, properly, that once Mr. Powell “invoked his Fifth Amendment right against self-incrimination, punishing him for asserting his right to remain silent and compelling him to disclose his sexual history in the course of sexual deviancy treatment imposed as part of his criminal sentence without immunity from future prosecution is a Fifth Amendment violation.” Powell, at 121. The trial court’s order involving Mr. Powell’s punishment was reversed and vacated.
Two big tactical points arise from this appellate ruling: (1) persons should not be seeking SSOSA sentences unless either (a) an immunity promise from the prosecutor is obtained and documented, or (b) the alleged perpetrator seeking treatment has only one victim. “b” is always risky, since persons seeking deviancy treatment more often than not have more than one child victim. (2) if the prosecutor agrees to immunity, and there is a significant amount of additional unknown history, a prosecutor may be influenced by the sheer weight of the additional history by, (a) not agreeing to a SSOSA, or (b) not dropping counts in order for the Defendant to statutorily qualify for a SSOSA. Put another way, if the individual seeking a SSOSA is granted immunity, and has truly scary history that has otherwise gone undetected, immunity is no guarantee that the individual will get the benefit of a SSOSA. The Powell case makes clear that immunity must be obtained before a Defendant discloses the results of a sexual deviancy evaluation to the prosecution. Even if immunity is received, there is still risk involved when a prosecutor learns of other significant history.